Behavioural Innovations in Marketing Law

Abstract

The purpose of this chapter is to present and discuss consumer protection aspects of laws concerning marketing in light of the ‘behavioural turn’ with a view to suggest how behavioural sciences may be used to reconstruct this legal field—and to provide inspiration for further research. Firstly, the law concerning unfair commercial practices is introduced, including in particular ‘the average consumer’ and ‘professional diligence’. These two normative abstractions are hereafter discussed in light of revelations within behavioural sciences (‘the behavioural turn’) and by taking developments in marketing into account. Basically, the idea is to discuss how empirical evidence corresponds with and may affect marketing law. This includes how and to which extent behavioural sciences can be used to draw the fine line between legitimate influence and illegal distortion of consumers’ economic behaviour. Finally, the chapter includes a discussion of law’s role and possible contribution to defining the proper level of consumer protection, including the delicate balancing between paternalism and the consumer’s right to self-determination.

Keywords: Marketing law, Unfair commercial practices directive, Consumer protection, Consumer behaviour, Behavioural turn

JEL Classification: K23, K29, M31, M38, D87