All businesses in the UK, particularly those in retail, advertising and marketing, should beware of the Business Protection from Misleading Marketing Regulations 2008 ('Regulations') which came into force on 26 May 2008.

The Regulations prohibit advertising that misleads traders and comparative advertising that does not satisfy certain conditions.

Advertising includes any form of representation by a business to promote the supply or transfer of goods or services, including immovable property, rights and obligations.

The Regulations state that advertising will be misleading where it deceives or is likely to "deceive the traders to whom it is addressed and by reason of its deceptive nature is likely to affect their economic behaviour".

Further, if a business uses comparative advertising (ie advertising which directly or indirectly identifies a competitor or a competitor's product), the advertising must satisfy certain conditions. That is, it must not:

• compare products or materials not designed for the same purpose or meeting the same needs
• confuse traders as to the advertiser and the competitor - present imitations or replicas of products bearing a protected trade mark or trade name
• take unfair advantage of the reputation of competitors' trade marks, trade names, other distinguishing marks or country of origin information
• mislead traders or consumers.

The Regulations also provide that "Code owners", who are traders or bodies that are responsible for producing, monitoring or revising a code of practice, will not be permitted to promote misleading advertising or comparative advertising that does not meet the prescribed conditions.

The Office of Fair Trading (OFT) and Trading Standards may apply to the courts for injunctions to stop any breach of the Regulations.

However, an offence will not be committed where a business simply publishes or arranges for the publication of advertising where they have no reason to suspect that the publication of a particular advertisement would amount to an offence.

A breach of the Regulations will be a criminal offence, which may result in a fine of up to £5,000 and in certain instances up to two years' imprisonment, although defences such as due diligence and innocent publication of advertising are available.