It has been recognised for some time that false and misleading price comparisons have formed a basic cause of consumer dissatisfaction.1 The first realistic attempt at controlling such comparisons came in 1968 with the Trade Descriptions Act, s. 11. This provision attempts to forbid, in relation to the supply of goods, such practices as making false comparisons with a manufacturer’s or producer’s recommended price2 and with a former price.3 It also makes it an offence for a retailer of goods to indicate falsely that the price of those goods is less than the amount actually charged.4 It was soon realised that the provisions of s. 11 were inadequate,5 but despite two Reports6 relevant to price indications, no attempt to augment the provisions of s. 11 was made until the introduction of the Price Marking (Bargain Offers) Orders 1979.7

In the course of this article, it is proposed to examine the scope of the present law in respect of price comparisons and its failures and to consider an alternative approach which might adequately replace the present law.

The Trade Descriptions Act 1968 s. 11(1)(a) makes it an offence for a person acting in the course of business8 to compare falsely the price at which he offers goods for sale with a manufacturer’s or producer’s9 recommended price. Due to a presumption in s. 11 (3)(b)(ii) any indication as to a recommended price is taken as a reference to the price recommended generally for the purpose of resale in the area where the goods are offered for sale. Thus a trader in Liverpool cannot, generally, compare his price for goods with a price recommended for the purposes of supply by retail in London. Further, implied references to a recommended price may also infringe the provisions of the Act.10 Thus, false or misleading references to “normal” or “usual” prices may amount to the commission of an offence under s. 11(1)(a).

Due to the wording of the prohibition, the only possible offender under s. 11(1)(a)