Consumer Protection and Sustainability: Refining Existing Laws for Net Zero, Schemes and Mind Maps of Law

Download Consumer Protection and Sustainability: Refining Existing Laws for Net Zero and more Schemes and Mind Maps Law in PDF only on Docsity! Consultation response: Sustainability and consumer and competition law: CMA Call for Inputs Which? is the UK’s consumer champion. As an organisation we’re not for profit - a powerful force for good, here to make life simpler, fairer and safer for everyone. We’re the independent consumer voice that provides impartial advice, investigates, holds businesses to account and works with policymakers to make change happen. We fund our work mainly through member subscriptions, we’re not influenced by third parties and we buy all the products that we test. Summary Which? welcomes the CMA’s initiative to look at how competition and consumer policy can better support the government’s net zero strategy and sustainability objectives1. Which? research2 and other surveys3 have shown that most consumers in the UK recognise the urgent need to tackle climate change, but are looking for better support and more information to help them make the changes that are required. To date the UK’s progress in reducing GreenHouse Gas (GHG) emissions has been largely achieved through changes to electricity generation and has had a limited direct impact on individual consumers. However it is clear that the next phase is much more dependent on the buy-in and support of consumers, and will include significant change, and in some cases complex decisions, about products and services. It is therefore important that policy supports and motivates people in making the changes that are required. The UK has a well developed competition and consumer protection framework and Which? welcomed the government’s recent consultation that included proposals to address gaps in consumer law and make competition and consumer law enforcement more effective and efficient. In addition, in order to ensure the competition and consumer protection regimes better support the UK’s Net Zero and sustainability goals, we recommend the CMA either take the following actions themselves or advise the government on necessary changes. Where it is relevant we have referenced regulations such as ecolabelling and ecodesign that are not the responsibility of the CMA. The CMA may have valuable input into the development of these regulations from a consumer perspective. 3 BEIS Public Attitudes Tracker: Wave 37 – Key Findings’, https://www.gov.uk/government/ statistics/beis-public-attitudes-tracker-wave-37 2 Supporting Consumers in the Transition to Net Zero, October 2021, Which? 1 In this response we focus on environmental sustainability and in particular the government’s net zero commitment. This is sometimes shortened to ‘sustainability’ or ‘environmental sustainability.’ 1 ● Consider sustainability as a benefit for consumers. Refining the interpretation and application of existing competition law to treat product sustainability as a qualitative benefit for consumers would mean that the creation of more-sustainable products would represent an efficiency gain. This might mean that some behaviours that would previously have been considered an infringement of Chapter I of Competition Act 1998 might be exempted from prohibition, for example the sharing of information between firms to facilitate efficiencies that lead to more sustainable outcomes. Equally, sustainability gains should be considered in the assessment of a merger. However, where there are trade-offs between consumer and societal benefits then the government rather than the CMA is best placed to make a decision on public interest grounds. ● Providing accessible and reliable information. Ensuring consumers have the information they need to make informed decisions about the purchase, use and disposal, or reuse, of products is critical to their ability to support the government’s sustainability goals ○ Although not part of the consumer protection framework, consistent mandatory labeling, such as the UK energy label, provides consumers with accurate and comparable information. The CMA has a valuable role in supporting labelling schemes based on their knowledge and experience, including how labelling requirements should be presented online. ○ We have welcomed the CMA’s work to improve guidance on environmental claims made by companies, but we recommend additional clarity is provided by establishing in law how companies should use the terminology in claims and the level of evidence that will be required to substantiate the use of such claims. ○ The provision of environmental information can be further strengthened by making it an offence under the Consumer Protection from Unfair Trading Regulations to omit product sustainability information that is required under statutory programmes, or present that information in an unclear, unintelligible, ambiguous or untimely manner. ● Supporting the availability of more sustainable products. In addition to ensuring consumers have access to the right information about the environmental impact of products it is important that consumer law supports the availability of more sustainable products, including products that are more durable, repairable and with improved energy efficiency. ○ The Consumer Rights Act (CRA) should be amended so that ecodesign regulations which require certain products to meet energy efficiency and repairability standards are considered an aspect of satisfactory quality. ○ Consumers should be made more aware of their rights under the CRA and it should be easier to use these rights to get retailers and manufacturers to remedy faults. ○ Guarantees should reflect the expected lifetime of products, creating an incentive for producers to design more durable products. 2 interpretation and application of existing competition law, but that competition law enforcement must continue to be enacted on the basis of consumer welfare. Where there need to be judgments that require trading off consumer and societal welfare then competition law is unlikely to be the right means for making these decisions and the government will need to adopt alternative methods. To encourage cooperation between firms in circumstances that could be both societal and consumer welfare improving, the CMA could consider further how the application of both block and individual exemptions should apply to sustainability agreements. Where existing block exemptions for horizontal co-operation agreements are due to expire in 2022, the CMA should consider whether these could be amended to give businesses greater certainty on their application to sustainability. With regard to the criteria for individual exemptions, we are not yet persuaded that there is scope for two of the criteria, indispensability and the non-elimination of competition, to be interpreted differently in the light of sustainability agreements in a way that will not be detrimental to consumers. However, we believe that product sustainability should be treated as a qualitative benefit for consumers and hence more sustainable products would represent an efficiency gain. There is widespread evidence that consumers value sustainability, although a sustainability paradox has been recognised in which purchasing decisions and behaviours do not always reflect stated preferences for sustainability and so the value is often context-specific. Therefore credible evidence will be needed whenever sustainability is claimed to be a quality benefit. Further, when considering whether consumers will receive a ‘fair share’ of efficiencies, the CMA should ensure that appropriate weight is given to the sustainability benefits for future users of a product and to benefits that manifest in other markets, for example reduced electricity use due to products with greater energy efficiency. The question of whether the CMA should consider benefits accruing to society as a whole is more problematic, both philosophically and practically, and as indicated above we do not think the CMA should currently be making these types of judgement calls. In some markets, sustainability agreements might lead to higher prices that fall particularly on lower income consumers, and questions that have distributional consequences, such as whether disadvantaged groups of consumers should pay higher prices to deliver a benefit to wider society, should lie with those with democratic accountability. In such cases, the government may need to use regulation to achieve the outcomes it wants. Merger control regime (c) Do you consider that the CMA’s merger control regime could better contribute to protecting the environment and support the UK’s Net Zero and sustainability goals? If so, please explain how. 5 (d) Do you consider that the CMA is an appropriate body to assess environmental sustainability factors in relation to merger control, for example, where it is a basis on which firms compete? Do you consider there would be a benefit in having an additional or alternative body or regulator being available to provide advice on such matters? Please explain the reasons for your response. As above, we believe that it is appropriate, in contexts where it can be credibly evidenced, for sustainability to be recognised as a dimension of quality. As such, it has the potential to be a relevant customer benefit and should be taken into account in merger decisions. Again though, we do not believe that the CMA is currently the appropriate body to consider whether a merger should be permitted on the basis of benefits that would accrue beyond consumers. In cases where the CMA determines a merger would lead to a substantial lessening of competition (not mitigated by rivalry-enhancing efficiencies or relevant customer benefits), then any decision to allow the merger on the basis of improved sustainability outcomes should be made by the government on public interest grounds and not the CMA. Such a decision would require trading off an overall societal benefit against the cost to groups of consumers made worse off by the reduction in competition and the government is best placed to make judgements that have distributional consequences. Consumer protection law (a) Does the current consumer protection law framework constrain or frustrate initiatives that might support the UK’s Net Zero and sustainability goals? Consumers are increasingly concerned about the sustainability of the products they purchase and seek to align their purchasing decisions with sustainability aims. A recent Which? survey found that over half (56%) of consumers claim they take environmental sustainability into account a great deal or a fair amount when choosing white goods; closer to a third (31%) claim to take sustainability into account when choosing to buy new technology products.8 In order to support consumers in meeting these aims it is critical that consumer law creates an enabling framework for consumers and manufacturers, supports consumers in making sustainable choices and does not encourage unsustainable practices and behaviours. In general, consumer protection law provides a good framework for protecting consumers’ rights in this area, however in some areas there is a need for additional guidance and changes to the law to ensure that consumer protection supports the government’s sustainability objectives. Consumer information Trustworthy and clear consumer information will be critical to supporting the government’s net zero strategy. In order to reduce their environmental impact consumers will need to be able to make informed decisions about the products and services they purchase and will therefore require better information about their environmental impact. 8 Supporting consumers in the transition to net zero, October 2021, Which? 6 A Which? survey9 found that nine in ten consumers say having clearer information on their products’ likely durability (90%) and clear energy labelling (87%) would be helpful. Eight in ten think more information on repairability of products (83%), recyclability (84%) or having a trademark/ badge to show a product had been manufactured in a sustainable way (81%) would be beneficial. More generally consumers may also want to know about a company’s overall sustainability policies, practices and impact as they seek to align their consumption choices with their views on sustainability. Consistent mandatory labelling is the most effective means for consumers to access verifiable and comparable information about the sustainability of products and the government’s recent Net Zero Strategy has said that they plan to, ‘help empower people to make informed choices about the goods and products they buy and services they use by exploring how we better label these with their emission intensity and environmental impact. We are also exploring the use of product labelling to show the durability, repairability and recyclability of products, as well as their environmental footprint with a view to stimulating demand for better quality items.’10 We urge the CMA to support the government in making rapid progress in robust sustainability labeling so that it provides the information consumers need to make a sustainable choice including the embodied or lifecycle emissions of a product, a repairability score, expected lifetime, and recycling information. We have welcomed the government’s proposals and consultations on expanding sustainability labelling and have responded with our proposals on how these can best be made to work for consumers. This has included extending the energy label to cover more products and for standards to more accurately reflect how consumers use these products, as well as adopting a single label design for recycling labels.11 We also welcomed the call within the proposals for a national food strategy from Henry Dimbleby to Defra for the government to develop an environmental labelling scheme for food products. With consumers making more purchases online, and making more purchasing decisions based on information online, it is important that labelling schemes include clear requirements for how online retailers and marketplaces communicate this information to consumers. Environmental claims In supporting improved sustainability labelling we recognise that there are technical challenges in compiling and communicating the information required and progress will be incremental. Therefore, in the short term consumers will generally continue to be reliant on the sustainability information provided by companies in order to make purchasing decisions. Even where sustainability labelling is available, a company is likely to provide their own 11 Consultation response: Consistency in Household and Business Recycling in England, June 2021, Which? 10 Net Zero Strategy: Build Back Greener, Oct 2021, UK government. p274 9 Supporting consumers in the transition to net zero, October 2021, Which? 7 environmental impact products, and services.’18 Ecodesign regulations have already been effective in improving the energy efficiency of some energy-using products by incrementally removing the least efficient products from the market. Ecodesign and associated legislation is also beginning to address the repairability of products by requiring manufacturers to make spare parts available and design products to make them easier to disassemble and repair. The government is also considering how ecodesign can be used to improve the durability of goods. Which? welcomes the introduction of these measures and encourages the government to rapidly increase both the number of products and the sustainability criteria covered by ecodesign and associated legislation. In addition to these changes, the government should consider how ecodesign regulations can be supported by consumer law. This will help to drive the removal of unsustainable products from the market and create an incentive for manufacturers to meet basic standards of sustainability. For example, ● Section 9 of the CRA that requires goods to be of satisfactory quality should be amended so that criteria included in ecodesign regulations are considered relevant. This currently includes durability but should be extended to include minimum energy efficiency and repairability requirements, as well as other sustainability criteria as ecodesign is extended. The CMA should also consider whether there are other environmental requirements or standards that consumers could reasonably expect products to meet. ● As discussed below, section 30 of the CRA which sets out how manufacturers and retailers must communicate any guarantees that they offer to consumers, could also be amended so that the length of the guarantee reflects any future statutory minimum expected product lifetimes. Supporting improvements to product durability Improving the durability of products by extending their expected lifetimes has the potential to reduce the use of resources in manufacturing and reduce waste. Waste is a significant issue in the UK with an estimated 2 million tonnes of WEEE items alone discarded each year by householders and companies.19 The government has stated that it has plans to extend ecodesign requirements to include product durability which will be a positive step. Durability should also be supported by the government making amendments to the CRA that extend the period during which a consumer can return a product because it has a pre-existing fault. This will create an incentive for manufacturers to produce more durable products. In the future, if minimum lifetimes are established through ecodesign regulations or equivalent regulations, the CRA could also be amended to require guarantees to more closely reflect a product’s expected lifetime. The impact of protections and guarantees on product longevity 19 https://www.hse.gov.uk/waste/waste-electrical.htm 18 Net Zero Strategy: Build Back Greener, October 2021, UK Government. 10 Consumers typically have three routes to redress for purchased products, goods or services that become faulty or defective; the Consumer Rights Act 2015 (CRA), manufacturer guarantees and extended warranties. The CRA: The CRA provides consumers with protections when buying products, services or digital content. Under the CRA, all products must be of satisfactory quality, fit for purpose and as described. Any product that does not satisfy any one of these criteria has been sold in breach of the CRA. Consumers have up to six years from the date they have taken ownership of a faulty product to make a claim against the retailer who sold it to them in respect of a fault that was present at the time of purchase. The CRA places obligations on retailers (not manufacturers) for remedying defective products. This can either be in the form of a repair, replacement or refund or price reduction, depending on how long consumers have owned a product. A fault that is discovered within the first six months of ownership is presumed to have been pre existing unless the retailer can prove otherwise. If a fault develops after the first six months, the burden is on the consumer to prove that the product was faulty at the time they took ownership of it. In practice, this may require some form of expert report, opinion or evidence of similar problems across the product range. By making the following changes to the CRA there is an opportunity to strengthen consumer protections, and at the same time increase the lifespan of products, ● Extending the initial 6-month reversal of the burden of proof to at least 12 months (but ideally a longer period inside of the full 6 years of protection within the CRA) so that consumers do not face any unnecessary or costly barriers to redress. The 2019 EU Sale of Goods Directive (EU SGD) has a 12-month reversal of burden of proof for EU consumers’ and the UK government should follow suit as part of its post Brexit commitments to maintain a level playing field. ● Bringing manufacturers into the scope so that they also have responsibilities for ensuring products conform with the Act and that consumers can obtain direct redress (prioritising repair rather than replacement, as manufacturers are best placed to do this than retailers) through them so that there is a stronger incentive to improve product durability. ● Requiring retailers and manufacturers to provide consumers with easily accessible information at the point of purchase about their rights under the CRA so that consumers are informed about their redress options when products develop physical or software faults and do not default to purchasing new replacement products. Rights will only be effective if consumers are aware of them and know how to exercise them. Manufacturer guarantees and warranties can provide additional routes to redress alongside the CRA. The terms are often used interchangeably but there are important distinctions. Guarantees are typically free and are usually provided by manufacturers’ to cover defects/repairs for typically 1 or 2 years after purchase. Accidental damage is typically not included. 11 Warranties, and extended warranties, typically offer broader cover for longer periods but come at a premium cost. Guarantees and warranties are not required by law and complement rather than replace rights under the CRA. Often the CRA provides longer protection, in the case of manufacturer defects. Both are considered contracts between the purchaser and the manufacturer. But they often have important exclusions or caveats (such as the extent of cover and additional costs), and consumers may be required to register their purchase along with personal details in order to validate it. Also, retailers may refund or replace an item within the timeframe of the guarantee as they will be able to obtain a refund from the manufacturer directly. Extended warranties can be poor value for money.20 For example, a 2011 investigation found that a five-year extended warranty could cost consumers up to 65% of the price of a washing machine, however there’s only a 12% chance of appliances needing to be repaired in the first five years. In general, guarantee length tends to be consistent with the brand, though there are some exceptions. Some manufacturers offer longer guarantees on some products on a promotional basis. For instance, Miele provides a 10-year warranty on some washing machines. While Samsung offers a 5 years warranty on a range of selected appliances including washing machines and dishwashers purchased between September 2019 and August 202021. Beko offers an extended 2 year guarantee on products that are registered online within 90 days of purchase.22 This covers repair and parts but not a replacement product. Sonos offers 6 years on all products at no extra cost.23 If a product is not able to be repaired, consumers will be offered a store credit to the value of the product. However there is potential detriment with guarantees. They cannot be transferred to new owners and there is limited time to register the product for guarantees to be activated. For example, some consumers need to register their product within 30 days to access the longer promotional guarantee. Further, the length of time it takes for broken appliances to be repaired might be prohibitive. This can cause consumers problems with essential appliances like washing machines, hobs, and ovens and may lead to them purchasing new products. Section 30 of the CRA sets out how manufacturers and retailers must communicate any guarantees that they offer to consumers. It does not stipulate how long a guarantee period should be or specify what the terms and conditions must be. This does not encourage durable design or place manufacturers under any legal responsibilities to ensure longer lasting products and allows manufacturers to decide terms that are favourable to them rather than the consumer. The CRA can be amended to reform guarantees by introducing the following prescriptive measures: 23 https://www.smarthomesounds.co.uk/blog/sonos/the-smart-home-sounds-6-year-guarantee 22 https://www.beko.co.uk/guarantee-terms 21 Samsung 5 year warranty 20 Extended warranties are poor value, says Which? Dec 2011, Which? 12 Guidance should cover the full range of ways in which consumers access information about products including price comparison websites and review websites. For example a Which? investigation in 2018 found that price comparison websites were adding to the confusion around energy tariffs, with options for ‘green’ or ‘renewable’ plans whose definitions varied.28 (c) What other opportunities are there to develop the consumer protection law framework to help to achieve the UK’s Net Zero and sustainability goals? Consumer protection in new or rapidly expanding markets The transition to net zero will lead to major changes and, in some cases, rapid growth in some markets. This can create particular challenges for consumers who lack the knowledge and experience to make informed decisions and has the potential to lead to consumer detriment if consumers make poor choices or are treated unfairly. New markets may also create gaps in consumer protection as products or services don’t fit previous definitions. The risk of detriment is particularly high in markets where consumers are making expensive purchases such as purchasing an electric vehicle or reducing the carbon emissions from their home by changing their heating system, installing insulation or solar panels. The CMA should undertake a review of these markets to understand where there is potential for consumer detriment and ensure that there is a robust consumer protection framework that meets the needs of current and future consumers. New business models: Renting, reuse and second hand markets The renting, resale and reuse of products has the potential to significantly reduce consumers’ impact on the climate and deliver consumer benefits including cost savings and convenience. Businesses have developed a number of new business models and expanded the provision of existing models to meet this need with many businesses using online platforms to link sellers, lenders and consumers or provide a rental service. Whilst consumers have adopted many of these new models with enthusiasm there can be a lack of clarity around consumers’ rights in these new markets which could undermine confidence and the growth of this innovative sector in the long term. Given that these business models are relatively new and sometimes disrupt the traditional definitions of seller and consumer it is important that consumers are aware of their rights in relation to each transaction so they can make an informed decision and make returns or seek refunds if required. We encourage the CMA to review this area and advise the government on changes or clarifications that should be made to consumer law to ensure consumers are aware of their rights and have strong protections in place: ● Online sellers should have clarity as to when they should register as businesses and how this affects their responsibilities towards consumers. 28 The Energy Tariff Greenwash, print, October 2019, Which? 15 ● Any party selling or renting a product should clearly specify whether they are a business or an individual and provide information to the other party as to what impact this has on their rights. Where the service is mediated through an online platform, the platform should require the parties to provide this information in order to participate in a transaction and ensure it is communicated to the other party. ● Rental agreements should have clear pricing that enables consumers to compare the cost of the rental service with alternative ways of procuring the product or service. Consumers should have legal rights if the product is faulty or not as expected and these should be clearly communicated to the consumer prior to an agreement being signed. The CMA should encourage the government to enact it’s proposals on subscription traps to ensure consumers are not locked into rental agreements that they no longer need. (d) To what extent should the consumer protection law framework be prescriptive, for example, by mandating provision of particular forms of information, or by prohibiting particular types of conduct, in order to help to achieve the UK’s Net Zero and sustainability goals? Which? research demonstrates that consumers support the urgent need for action to tackle the climate crisis and other environmental challenges, and need robust and clear information and support to make the changes required. Many of these changes will require consumers to engage with new markets and involve complex and costly decisions with the potential for significant detriment due to consumers’ lack of knowledge and awareness. In these circumstances, there is clear synergy between the need to strengthen consumer protections and the UK’s Net Zero and sustainability goals, and a strong argument for the government to introduce mandatory provisions to provide consumers and businesses with clarity and certainty to support the transition to net zero. For example the government should consider: ● Introducing legislation to establish how companies should use the terminology in environmental claims and the level of evidence that will be required to substantiate the use of such claims. ● Introducing a requirement for companies to provide sustainability information and meet sustainability criteria as set out in energy labelling and ecodesign regulations and for these requirements to track the expansion of these schemes to cover more sustainability criteria and products. ● Clarifying misleading business practices that result in consumers making purchases that they had not intended to make. ● Clarifying the responsibility of platforms to provide information to consumers about the status of a seller and the impact that this has on the consumer's rights. We do recognise that in some cases there may be contradictions between consumers' immediate interests and sustainability goals. In these cases the government should consider the impacts of different options including the distributional impacts. 16 (e) How far should the consumer protection law framework go to address: (i) the planned obsolescence of products; Planned obsolescence refers to actions taken by a company that intentionally shortens the lifetime of a product with the aim of making customers replace it. Actions can include choices made in the design of a product that result in it having a shorter lifespan than it otherwise would, or actions, such as software updates, that limit the functionality of the product such that consumers need to replace it before the end of its expected life. Countries including France and Italy have introduced legislation to ban planned obsolescence. The government's proposals to improve the repairability of some products will tackle one way in which products can become obsolete. In addition, amending the CRA to extend the period during which a consumer can return a product because it has a pre-existing fault, and extending guarantees to reflect a product’s expected lifetime, would create a strong incentive for companies to design more durable products. However, as it may be difficult for consumers to identify when a product has failed as a result of an action taken by the manufacturer, these actions are unlikely to be effective in addressing all forms of planned obsolescence. Therefore placing an explicit legal obligation on companies not to make products obsolete unless there is a legitimate reason would provide clarity for both consumers and companies. Where a safety or security issue arises after the point of sale that requires a product to be made obsolete (for example when Samsung issued an update that prevented recalled Galaxy Note7 devices from recharging)29 consumers should receive a replacement or compensation. (ii) commercial practices which promote over-consumption? Misleading consumers into purchases that they do not want or need is an abuse of consumer law and is likely to result in overconsumption and waste. The CMA should consider how it can provide businesses and consumers with greater clarity as to practices that are misleading and break consumer law. Offers that encourage overconsumption Offers are designed to encourage consumers to purchase products and are a popular way for consumers to save money. However some offers may encourage consumers to purchase products in greater quantities than they prefer in order to obtain a discount. From a consumer perspective this could lead to ‘overconsumption’ in two senses: 1) consumers purchase more of a good than they can reasonably consume, which results in unnecessary use of resources and waste. 2) consumers purchase in quantities that they later regret, even if not leading to waste. This may be the case where consumers’ present-bias leads them to overweight the immediate financial appeal of an offer despite the future negative consequences of their consumption. Such behaviour is more commonly thought about in relation to goods with negative health impacts e.g. cigarettes, alcohol, unhealthy foods. However such principles could similarly apply to products with negative environmental 29 Samsung Taking Bold Steps to Increase Galaxy Note7 Device Returns. Sept 2016, Samsung. 17 Although there is some evidence that consumers are aware of these manipulative design techniques, there are several reasons why awareness is not a sufficient form of consumer protection in this case: ● Dark patterns are purposefully difficult to spot as their purpose is to manipulate. Even if consumers are aware of their existence, it is unreasonable to expect them to know all dark patterns and be able to identify them online. ● Consumers have difficulty spotting some dark patterns and even if they do spot them awareness is unlikely to be sufficient to protect them from the effects. ● The widespread nature of dark patterns means that consumers often do not have an alternative to using websites and apps that employ them even if they feel manipulated and suffer detriment. There are also indications that consumers may find it hard to conceptualise harms from dark patterns. ● Whether consumers accept different types of dark patterns is associated with the perceived harm that can result from it (e.g. 'nagging' is more accepted as it's seen as just annoying, whereas sneaking or hiding additional costs is not acceptable). Misleading actions are banned under the CPRs, which stipulates in Regulation 5(2)(b) that a commercial practice is a misleading action if it causes or is likely to cause the average consumer to take a transactional decision they would not have taken otherwise. This suggests that elements of dark patterns are already covered by way of interpretation; however, greater clarity and specificity is clearly needed as dark patterns continue to be heavily used despite the existence of these provisions in CPRs. The Digital Markets Task Force previously suggested that the government could consider reforms to the CPRs by expressly introducing certain manipulative design practices into them36. Schedule 1 annexed to the CPRs contains a list of commercial practices which are in all circumstances considered to be unfair according to Regulation 3(4)(d). Which? proposes that manipulative design practices and behavioural techniques that amount to dark patterns be introduced into Schedule 1 of the CPRs to provide greater specificity for businesses, enforcement agencies and consumers. By including a definition, rather than a definitive list of individual dark patterns, certainty is provided to consumers and businesses, whilst retaining a degree of flexibility for regulators to address developments in this area. This approach has been proposed as an amendment to the EU’s Draft Digital Service Act37 and was adopted in the California Consumer Privacy Act38. Additionally, dark patterns could be clarified in an update of non-statutory guidance for businesses on consumer protection from unfair trading39. The CMA could also potentially be given a duty or conferred powers to issue a Code of Conduct or something of a similar nature, which would have greater legal force. A code could comprise high-level objectives supported by principles and guidance. 39 Business companion, Consumer protection from unfair trading 38 CIV - 1798.140. - TITLE 1.81.5. California Consumer Privacy Act of 2018 [1798.100. - 1798.199.100. 37 European Parliament, Draft Report, DSA Amendments 36 CMA, A new Pro-competition Regime for Digital Markets: Advice of the Digital Markets Taskforce 20 (c) Are there other opportunities within the UK’s competition and consumer policy toolbox that would support the UK’s Net Zero and sustainability goals, which the government should be considering? Consumer enforcement In addition to the steps required to strengthen consumer law it is important that consumers have the confidence that these protections will be enforced and consumers will have access to redress should anything go wrong. This is particularly important when consumers are being asked to make new, complex and costly decisions as part of the transition to net zero including investing in new heating systems, switching to an electric vehicle or engaging in a new market as part of the the circular economy by, for example, renting a product or selling a product themselves. In our response to the government consultation on Competition and Consumer Policy reform Which? supported the government’s proposals to enhance CMA enforcement powers and introduce mandatory ADR in home improvements and used car sales and servicing. If implemented, these changes could be effective in raising standards and taking action against companies and traders that should support consumers making the necessary changes to meet net zero. However, given the importance of these decisions and the potential for consumer detriment, the government should be prepared to introduce further measures where necessary by, for example, introducing enhanced enforcement, requiring membership of accreditation schemes and providing additional guidance. The far reaching nature of these changes will require coordination across the consumer enforcement regime and sufficient resourcing particularly in local authority trading standards. Two key areas where the government should address gaps in ADR include: ● Home heating: for many people making the transition to low carbon home heating will involve an expensive purchase and the potential for considerable disruption as the necessary changes are made in people’s homes. In order for consumers to have confidence in this process they will need robust consumer protections and confidence in the reliability and safety of the products and their installation, including access to skilled, trusted installers. This includes clamping down on rogue traders and scammers. ● Electric vehicles: purchasing a new or second hand eclectic vehicle is an expensive purchase and consumers may have concerns, particularly given previous mistakes regarding government advice in relation to diesel cars and some of the misconceptions surrounding electric vehicles. It is therefore important that consumers are aware of their rights and can seek redress if anything should go wrong. These rights should also extend to the servicing of the vehicle and the EV charging infrastructure. ● Proposals to make ADR mandatory in the home improvements and the used car sales and servicing sectors should cover disputes that consumers may experience as a 21 result of work that is done to housing to reduce emissions, and the purchase and servicing of second hand EVs. Consumer awareness Improved awareness of consumer rights can support sustainability objectives as it will encourage consumers to act on their rights and, in turn, create an incentive for companies to adopt improved practices. This could help to challenge misleading techniques that encourage overconsumption and, if consumers are empowered to use their rights to return faulty products, encourage companies to design products with a longer life. Better awareness may be particularly important in new markets that are emerging to provide the products and services that consumers need as part of the transition to a low carbon future. Greater awareness of consumer rights, including the right to redress if something goes wrong, may act as reassurance and build consumers' confidence to engage with these markets. The government’s Net Zero strategy proposes an increased role for the government, working in partnership with others, to ensure consumers have the information they need. Which? urges the government to make awareness of consumer rights an integral part of these plans. In addition companies should be encouraged to provide consumers with information about their legal rights. Through our engagement with consumers we consistently find that consumers want information that is accessible and available at the point at which they are considering a purchase or have a problem. Where possible this should be promoted through requirements placed on companies to provide this information to consumers. This could be achieved through license conditions or membership of accredited schemes. If possible this should include an agreed description of how and where consumers rights are described and presented. Markets regime (a) How should the CMA use its Markets powers to support the government’s strategic priorities on environmental sustainability and Net Zero? (b) How can the CMA identify markets that may be particularly relevant and important in supporting the UK’s strategic goals on environmental sustainability and Net Zero? Are you aware of specific examples? (c) Are there changes to the Markets regime, other than those highlighted above, which would better allow it to support Net Zero and environmental sustainability objectives? Please be as concrete as possible in your answers. The markets regime provides an effective toolkit for the CMA to help the UK to achieve its Net Zero commitment. Within the Markets regime the CMA can and should take into account environmental sustainability to the extent that it leads to economic harm to consumers. We were pleased that the CMA conducted a market study into electric vehicle charging as we 22