The Trading Bulletin | March 2025

Welcome to our Trading Law Bulletin, where we share the latest developments on data protection, financial services, health and safety, environmental issues, and marketing.

Data Protection Updates

ICO Launches Guidance on ‘Consent or Pay’ Cookie Terms

In January, the ICO published a detailed guidance note on what factors companies running a ‘consent or pay’ model for cookies should consider. The guidance is particularly timely, with numerous websites (including news tabloids) pay-walling content behind cookies policies; either the end user consents to a cookies policy or pays a fee to access said content. A key factor highlighted by ICO guidance includes whether an individual’s consent is freely given and whether there is a clear imbalance between the parties; for example, where an individual relies on a service and refusal of consent leads to some inherent detriment, then a consent or pay model may be problematic in this instance.

The full guidance document can be located here.

Government Announces Plans for GOV.UK Wallet

The government outlined plans for the release of a GOV.UK wallet to streamline the usability of official documents. The GOV.UK wallet aims to function similarly to other multi-use digital wallets like the Google wallet, with the GOV.UK wallet acting as safe digital storage for official government documents. The user would be able to use the GOV.UK wallet to verify information including their identity and if they are eligible for certain services. Technology Secretary Peter Kyle clarified the GOV.UK wallet will include crucial documents such as DBS checks, which should save people time from having to find the physical version. The GOV.UK wallet is not yet available for use.

More information can be found here.

ICO Launches Tool to Advise on Direct Marketing

The ICO have launched a beta version of a new tool, dubbed the ‘direct marketing advice generator’, for companies to test whether their direct marketing falls in line with the Privacy and Electronic Communications Regulations and the UK GDPR. Although the tool is free to use for all, it was made in contemplation of smaller organisations who have less manpower at their disposal. Organisations that fall afoul of rules governing direct marketing may be fined by the ICO; the direct marketing advice generator, which can be accessed here, aims to help organisations ensure compliance and avoid being sanctioned.

Financial Services Updates

Secret commission motor finance case

The UK Supreme Court are set to review from the 1 April – 3 April 2025 the Court of Appeal's recent decision in the secret commission motor finance case Johnson v FirstRand Bank Ltd [2024] EWCA Civ 1282, which caused shock waves in the motor finance market and wider consumer credit market. The case found that a broker is in conflict with a fiduciary duty owed to the borrower when it accepts the lender’s payment of commission, with the lender potentially liable as accessory to the breach, unless there was sufficient disclosure to procure the consumer's fully informed consent. Perhaps most significantly the court found that historically market standard commission disclosures did not meet the standard for informed consent. The Chancellor had sought to curb the potential £44 billion bill for lenders, but her attempt to intervene in the commissions scandal was rejected on 17 February. Reeves' attempt to intervene underscores the government's aim to avoid scenarios limiting car affordability and avoid handing "windfall compensation to borrowers". Lobbyists in the financial sector have warned that huge payouts over the scandal could rival the payment protection insurance (PPI) mis-selling saga and push some lenders out of business. Thus, the Supreme Court's decision on the 1-3 April is highly anticipated.

Consumer duty priorities

The FCA has helpfully summarised its priorities under the Consumer Duty for the remainder of 2024/25 in a new webpage. There are various sector specific initiatives identified as well as a continuing focus on fair value, but the FCA's three cross cutting projects will likely be of most relevance to credit brokers:

• Review of board/governing body reports and complaints and root cause analysis – assessing how firms are responding to outcomes monitoring requirements, for example through review of Board reports and how firms are using insight from their complaints to identify systemic issues and improve business practices.  
• Review of treatment of customers in vulnerable circumstances – assessing firms’ approach to the treatment of customers in vulnerable circumstances. 
• Review of consumer support outcome and supporting informed decision-making – looking at how firms support their customers across the customer journey and how they are using communications to support informed consumer decision-making.

Health & Safety/Compliance Updates

New packaging recyclability reporting requirements under Extended Producer Responsibility

Large producers, those producers who have an annual turnover of £2 million or more and are responsible for supplying or importing more than 50 tonnes of packaging in the UK under the EPR regulations must assess the recyclability of their packaging. The first reports under the EPR regulations must be submitted on or before 1 October 2025, for the period 1 January to 30 June 2025.

Employee Mental Health

Blue Monday in January provided a timely reminder to consider what is being done to protect the mental health of your workforce. HSE's focus on employee mental health means it is more important than ever for retailers to consider this. See our article: Are you looking after the mental health of your employees this Blue Monday?

Martyn's law completes Committee Stage

On 12 February 2025, Martyn's law completed the Committee stage in the House of Lords. No amendments have been made to the Bill.

Read the bill here.

Failure to prevent fraud offence comes into force on 1 September 2025

Following the publishing of the government guidance on the failure to prevent fraud offence, the countdown is ticking until the offence comes into force on 1 September 2025. Retailers should take action to update fraud risk assessments and ensure appropriate fraud prevention procedures are in place.

Government response to Modern Slavery Act 2015 report

Following the House of Lords Select Committee's review of the Modern Slavery Act 2015, the government have published a response which accepts many of the committee's recommendations. However, any major reform is unlikely to take place in the short term.

See the response here.

Ronan's Law – a crackdown on online knife sales

The government will be introducing stricter rules on retailers who sell knives online, in addition to increased penalties for failing to enforce them. This includes a requirement for retailers to report any bulk or suspicious-looking purchases of knives on their platforms to police to prevent illegal resales.

See government announcement here.

Marketing Updates

Further consultation on the implementation of new rules on ads for "less healthy" food and drink products

CAP has published a further consultation on its guidance about the new rules on "less healthy" food and drinks which it has revised as a result of previous consultation responses. One of the main revisions will make the guidance more cautious in relation to the application of the brand advertising exemption. It is likely to clarify that even if an ad does not explicitly refer to or feature an LHF product – it may still be restricted.

Respond to the consultation here.

2025/2026 draft annual plan from the CMA

On 13 January 2024 the CMA released its 2025/2026 draft annual plan, which confirms 'full support' for the government's renewed focus on driving economic growth. The draft annual plan also builds on  its Purpose, Ambition and Strategy (confirmed at the start of 2023) and confirmed that the CMA will place UK growth, opportunity, and prosperity at the heart of its strategy.

The plan lays out the CMA's priorities over the next 12 months. Notably, indicative, priorities include:

• Utilising its new enforcement powers under the Digital Markets, Competition and Consumers Act 2024 (DMCC Act) (see further information on the DMCCA below);
• Bringing choice and effective competition in areas of essential consumer spend where people are under financial pressure;
• Encouraging competitive markets for green technology;
• Enabling innovating businesses to invest and compete on a level-playing field;
• Supporting public sector savings and productivity gains by focusing on rooting out bid-rigging in public procurement (and harnessing the use of AI to do so); and
• Deepening its work with UK consumers and businesses through it's recently launched CMA Growth and Investment Council.

The draft annual plan can be found here on the CMA's website, for further information.

The Digital Markets, Competition and Consumer Act 2024 (DMCCA 2024): A consumer lens

From April 2025, the DMCCA is set to introduce reforms to consumer protection law in the UK. Key amends include the following:

• The CMA's new enforcement rights (to run in parallel with the current judicial regime);
• The prohibition of drip-pricing;
• Additional reviews around fake reviews; and
• The introduction of individual liability for director's and senior managers of organisations (including, but not limited to, monetary penalties of up to £300,000 for a company's infringement of consumer law where the commercial practice took place with the consent or connivance of the director/senior manager).

For further information, see our full article here and the CMA's draft guidance.

Combatting unsubstantiated green claims: The ASA's continued battle against greenwashing claims

The ASA continues to crack down on unsubstantiated green claims and greenwashing, now using their Active Ad Monitoring system, which uses AI, to proactively search for and identify online ads which may be breaking the Code rules.

In a recent ASA ruling, the software brought two ads to the attention of the standards authority. The AI tool is likely to allow the ASA to scrutinise a greater number of ads and to proactively regulate advertisers, rather than respond to complaints.