This paper argues that the introduction of access agreements following the establishment of the Office for Fair Access (OFFA) has consolidated how English higher education institutions (HEIs) position themselves in the marketplace in relation to widening participation. However, the absence of a national bursary scheme has led to obfuscation rather than clarification from the perspective of the consumer. This paper analyses OFFA's 2008 monitoring report and a sample of twenty HEIs' original 2006 and revised or updated access agreements (2008) to draw conclusions about the impact of these agreements on notions of "fair access" and widening participation. The authors conclude that, unsurprisingly in an increasingly market-driven system, institutions use access agreements primarily to promote enrolment to their own programmes rather than to promote system-wide objectives. As a consequence of this marketing focus, previous differences between pre-1992 and post-1992 institutions in relation to widening participation and fair access are perpetuated, leading to both confusion for consumers and an inequitable distribution of bursary and other support mechanisms for the poorest applicants to HE.