Consumer protection

Consumer protection is the practice of safeguarding buyers of goods and services, and the public, against unfair practices in the marketplace. Consumer protection measures are often established by law. Such laws are intended to prevent businesses from engaging in fraud or specified unfair practices in order to gain an advantage over competitors or to mislead consumers. They may also provide additional protection for the general public which may be impacted by a product (or its production) even when they are not the direct purchaser or consumer of that product. For example, government regulations may require businesses to disclose detailed information about their products—particularly in areas where public health or safety is an issue, such as with food or automobiles.

Rights
Theoretical distinctions
Human rights
Rights by beneficiary
Other groups of rights

Consumer protection is linked to the idea of consumer rights and to the formation of consumer organizations, which help consumers make better choices in the marketplace and pursue complaints against businesses. Entities that promote consumer protection include government organizations (such as the Federal Trade Commission in United States), self-regulating business organizations (such as the Better Business Bureaus in the US, Canada, England, etc.), and non-governmental organizations that advocate for consumer protection laws and help to ensure their enforcement (such as consumer protection agencies and watchdog groups).

A consumer is defined as someone who acquires goods or services for direct use or ownership rather than for resale or use in production and manufacturing. Consumer interests can also serve consumers, consistent with economic efficiency, but this topic is treated in competition law. Consumer protection can also be asserted via non-government organizations and individuals as consumer activism.

Concept of Consumer law

Consumer protection law or consumer law is considered as an area of law that regulates private law relationships between individual consumers and the businesses that sell those goods and services. Consumer protection covers a wide range of topics, including but not necessarily limited to product liability, privacy rights, unfair business practices, fraud, misrepresentation, and other consumers/business interactions. It is a way of preventing frauds and scams from service and sales contracts, eligible fraud, bill collector regulation, pricing, utility turnoffs, consolidation, personal loans that may lead to bankruptcy.

The following lists consumer legislation at the nation-state level. In the EU member states Germany and the United Kingdom, there is also the applicability of law at the EU level to be considered; this applies on the basis of subsidiarity.

Australia

In Australia, the corresponding agency is the Australian Competition and Consumer Commission or the individual State Consumer Affairs agencies. The Australian Securities and Investments Commission has responsibility for consumer protection regulation of financial services and products. However, in practice, it does so through privately run EDR schemes such as the Financial Ombudsman Service (Australia).

Brazil

In Brazil, consumer protection is regulated by the Consumer's Defense Code (Código de Defesa do Consumidor),[1] as mandated by the 1988 Constitution of Brazil. Brazilian law mandates "The offer and presentation of products or services must ensure correct, clear, accurate, conspicuous and in Portuguese language information about their characteristics, qualities, quantity, composition, price, guarantee, validity and origin, among other data, as well as the risks they pose to the health and safety of consumers." [2]In Brazil, the consumer does not have to bring forward evidence that the defender is guilty. Instead, the defense has to bring forward evidence that they are innocent.[1] In the case of Brazil, they narrowly define what a consumer, supplier, product, and services are, so that they can protect consumers from international trade laws and protect them from negligence and misconduct from international suppliers.

Germany

Germany, as a member state of the European Union, is bound by the consumer protection directives of the European Union; residents may be directly bound by EU regulations. A minister of the federal cabinet is responsible for consumer rights and protection (Verbraucherschutzminister). In the current cabinet of Angela Merkel, this is Katarina Barley.

When issuing public warnings about products and services, the issuing authority has to take into account that this affects the supplier's constitutionally protected economic liberty, see Bundesverwaltungsgericht (Federal Administrative Court) Case 3 C 34.84, 71 BVerwGE 183).[3]

India
See also: Consumer Protection Act, 1986 and National Consumer Disputes Redressal Commission

In India, consumer protection is specified in The Consumer Protection Act, 2019. Under this law, Separate Consumer Dispute Redress Forums have been set up throughout India in each and every district in which a consumer can file his complaint on a simple paper with nominal court fees and his complaint will be decided by the Presiding Officer of the District Level. The complaint can be filed by both the consumer of a goods as well as of the services. An appeal could be filed to the State Consumer Disputes Redress Commissions and after that to the National Consumer Disputes Redressal Commission (NCDRC).[4] The procedures in these tribunals are relatively less formal and more people friendly and they also take less time to decide upon a consumer dispute[5] when compared to the years-long time taken by the traditional Indian judiciary. In recent years, many effective judgments have been passed by some state and National Consumer Forums.

Indian Contract Act, 1872 lays down the conditions in which promises made by parties to a contract will be legally binding on each other. It also lays down the remedies available to aggregate party if the other party fails to honor his promise.

The Sale of Goods Act of 1930 act provides some safeguards to buyers of goods if goods purchased do not fulfill the express or implied conditions and warranties.

The Agriculture Produce Act of 1937 act provides grade standards for agricultural commodities and livestock products. It specifies the conditions which govern the use of standards and lays down the procedure for grading, marking and packaging of agricultural produce. The quality mark provided under the act is known as AGMARK-Agricultural Marketing.

Nigeria

The Nigerian government has a duty to protect its people from any form of harm to human health through the use and purchase of items to meet daily needs. In light of this, the Federal Competition and Consumer Protection Commission (FCCPC), whose aim is to protect and enhance consumers' interest through information, education, and enforcement of the rights of consumers was established by an Act of Parliament to promote and protect the interest of consumers over all products and services. In a nutshell, it is empowered to eliminate hazardous & substandard goods from the market. Provide speedy redress to consumer complaints and petition arisen from fraud, unfair practice and exploitation of the consumer.

On 5 February 2019, the President of Nigeria, Muhammadu Buhari, assented to the new Federal Competition and Consumer Protection Commission Bill, 2018. Thus, the bill became a law of the Federal Republic of Nigeria and binding on entities and organizations so specified in the Act.

The long title of the Act reads: "This Act establishes the Federal Competition and Consumer Protection Commission and the Competition and Consumer Protection Tribunal for the promotion of competition in the Nigerian market at all levels by eliminating monopolies, prohibiting abuse of dominant market position and penalizing other restrictive trade and business practices." The Act further repealed the hitherto Nigerian Consumer Protection Council Act and transferred its core mandate to the new Commission.

Taiwan

Modern Taiwanese law has been heavily influenced by European civil law systems, particularly German and Swiss law. The Civil Code in Taiwan contains five books: General Principles, Obligations, Rights over Things, Family, and Succession. The second book of the Code, the Book of Obligations, provided the basis from which consumers could bring products liability actions prior to the enactment of the CPL.[6][7]

The Consumer Protection Law (CPL) in Taiwan, as promulgated on 11 January 1994, and effective on 13 January 1993, specifically protects the interests and safety of customers using the products or services provided by business operators. The Consumer Protection Commission of Executive Yuan serves as an ombudsman supervising, coordinating, reporting any unsafe products/services and periodically reviewing the legislation.

According to the Pacific Rim Law & Policy Association and the American Chamber of Commerce, in a 1997 critical study, the law has been criticized by stating that "although many agree that the intent of the CPL is fair, the CPL's various problems, such as ambiguous terminology, favoritism towards consumer protection groups, and the compensation liability defense, must be addressed before the CPL becomes a truly effective piece of legislation that will protect consumers"[8]

United Kingdom

The United Kingdom, is not in the European Union, but is in the transition period (until end of 2020) still bound by directives of the European Union. Specifics of the division of labour between the EU and the UK are detailed here.[9] Domestic (UK) laws originated within the ambit of contract and tort but, with the influence of EU law, it is emerging as an independent area of law. In many circumstances, where domestic law is in question, the matter is judicially treated as tort, contract, restitution or even criminal law.

Consumer Protection issues were dealt with by the Office of Fair Trading before 2014. Since then, the Competition and Markets Authority has taken on this role.[10]

United States
Consumer protection laws often mandate the posting of notices, such as this one which appears in all automotive repair shops in California

In the United States a variety of laws at both the federal and state levels regulate consumer affairs. Among them are the Federal Food, Drug, and Cosmetic Act, Fair Debt Collection Practices Act, the Fair Credit Reporting Act, Truth in Lending Act, Fair Credit Billing Act, and the Gramm–Leach–Bliley Act. Federal consumer protection laws are mainly enforced by the Federal Trade Commission, the Consumer Financial Protection Bureau, the Food and Drug Administration, and the U.S. Department of Justice.

At the state level, many states have adopted the Uniform Deceptive Trade Practices Act[11] including, but not limited to, Delaware,[12] Illinois,[13] Maine,[14] and Nebraska.[15] The deceptive trade practices prohibited by the Uniform Act can be roughly subdivided into conduct involving either a) unfair or fraudulent business practice and b) untrue or misleading advertising. The Uniform Act contains a private remedy with attorneys fees for prevailing parties where the losing party "willfully engaged in the trade practice knowing it to be deceptive". Uniform Act §3(b). Missouri has a similar statute called the Merchandising Practices Act.[16] This statute allows local prosecutors or the Attorney General to press charges against people who knowingly use deceptive business practices in a consumer transaction and authorizes consumers to hire a private attorney to bring an action seeking their actual damages, punitive damages, and attorney's fees.

Also, the majority of states have a Department of Consumer Affairs devoted to regulating certain industries and protecting consumers who use goods and services from those industries. For example, in California, the California Department of Consumer Affairs regulates about 2.3 million professionals in over 230 different professions, through its forty regulatory entities. In addition, California encourages its consumers to act as private attorneys general through the liberal provisions of its Consumers Legal Remedies Act.

California has the strongest consumer protection laws of any US state, partly because of rigorous advocacy and lobbying by groups such as Utility Consumers' Action Network, Consumer Federation of California, and Privacy Rights Clearinghouse. For example, California provides for "cooling off" periods giving consumers the right to cancel contracts within a certain time period for several specified types of transactions, such as home secured transactions, and warranty and repair services contracts.[17]

Other states have been the leaders in specific aspects of consumer protection. For example, Florida, Delaware, and Minnesota have legislated requirements that contracts be written at reasonable readability levels as a large proportion of contracts cannot be understood by most consumers who sign them.[18]

Considering the state of Massachusetts, the Massachusetts Consumer Protection Law, MGL 93A, clearly highlights the rights and violations of consumer protection law in the state. The chapter explains what actions are considered illegal under the law for which a party can seek money damages from the other party at fault.[19] Some examples of practices that constitute a Chapter 93A violation would be when:

  1. A Business charges a consumer higher rates than the marked price
  2. The refund policy is not clearly posted where it can be readily noticed and understood
  3. A business fails to tell you relevant information regarding your product or service misleads you in any way.[20]

The laws under MGL 93A prohibits activities that relate to overpricing to a consumer and use of "Bait and Switch" techniques. A court will award the plaintiff the damages if they can prove the (1) defendant knowingly and intentionally violated the MGL 93A agreement or (2) the defendant would not "grant relief in bad faith" knowing that the actions violated the MGL 93A agreement.[21] Additionally, failure to disclose refund/ return policy, warranties and critical information about the product/service are all in violation of the legislation, and can result in triple damages and lawyer fees.[22]

Constitutional laws

47 national constitutions currently include and enforce some sort of consumer right.[23] The Constitute[24] project lists the text of each of these provisions[25][26] Kenya's provision,[27] for example, suggests that citizens have the right to

  1. goods and services of "reasonable quality."
  2. information about the product, and
  3. protection of their health and safety in the use of the product.

The Kenyan rule also stipulates that citizens would have legal recourse in the case of injury or product defects.

Laws

United Kingdom

United States
  • Consumer Product Safety Act – gives the Consumer Product Safety Commission the power to develop safety standards and pursue recalls for products
  • Federal Trade Commission Act – created the Federal Trade Commission (FTC) to prevent unfair competition, deceptive acts, regulate trade, etc.
Privacy laws
  • United States National Do Not Call Registry – allows US consumers to limit telemarketing calls they receive.
Food and drug
  • Pure Food and Drug Act – led to the creation of the U.S. Food and Drug Administration (FDA) to regulate foods, drugs, and more.
Communications
Banking
Real estate
Health insurance
Digital media

Australia
  • The Australian Consumer Law
  • Division 2 of Part 2 of the Australian Securities and Investments Commission Act 2001[28] in relation to financial services and products.
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See also

Consumer issues

People

References
  1. "L8078". www.planalto.gov.br. Retrieved 3 July 2019.
  2. "L8078". www.planalto.gov.br. Retrieved 12 April 2020.
  3. "Archived copy". Archived from the original on 19 February 2007. Retrieved 11 July 2006.CS1 maint: archived copy as title (link)
  4. "National Consumer Disputes Redressal Commisssion". ncdrc.nic.in.
  5. V. Balakrishna Eradi, "Consumer Protection and National Consumer Disputes Redress Commission" Archived 21 July 2011 at the Wayback Machine. New Delhi: National Consumer Disputes Redressal Commission. Accessed 25 June 2013.
  6. "(TAIWAN) CONSUMER PROTECTION LAW". 1 June 2011.
  7. "Laws & Regulations Database of The Republic of China". law.moj.gov.tw.
  8. Carol T. Juang, "The Taiwan Consumer Protection Law: Attempt to Protect Consumers Proves Ineffective" Pacific Rim Law & Policy Association, 1997.
  9. "EU law and the balance of competences: A short guide and glossary, 2012". Foreign & Commonwealth Office. Retrieved 20 April 2016.
  10. "New competition authority comes into existence". 1 October 2013. Retrieved 15 January 2020.
  11. "Wayback Machine" (PDF). 21 August 2010. Archived from the original (PDF) on 21 August 2010.
  12. "TITLE 6 - CHAPTER 25. PROHIBITED TRADE PRACTICES - Subchapter III. Deceptive Trade Practices". delcode.delaware.gov.
  13. "815 ILCS 510/ Uniform Deceptive Trade Practices Act". www.ilga.gov.
  14. "Title 10, §1212: Deceptive trade practices". www.mainelegislature.org.
  15. "Nebraska State Statutes - Uniform Deceptive Trade Practices Act". www.nebraskaautobody.com. Archived from the original on 17 January 2012. Retrieved 13 December 2011.
  16. "Missouri Revisor of Statutes - Revised Statutes of Missouri, RSMo, Missouri Law, MO Law". www.moga.mo.gov.
  17. "Contract Cancellation periods or "Cooling off periods"". Law Soup LA. 9 July 2014. Retrieved 23 April 2018.
  18. Lewis D. Eigen, "A Solution to the Problem of Consumer Contracts That Cannot be Understood by Consumers Who Sign Them", Scriptamus, 2009.
  19. "Section 9". The 191st general court of the commonwealth of Massachusetts. Retrieved 11 April 2020.
  20. "The Massachusetts Consumer Protection Law". Mass.gov. Retrieved 12 April 2020.
  21. "The Massachusetts Consumer Protection Law". Mass.gov. Retrieved 12 April 2020.
  22. "The Massachusetts Consumer Protection Law". Mass.gov. Retrieved 11 April 2020.
  23. Elkins, Zachary, Tom Ginsburg, and James Melton. 2014. "Characteristics of National Constitutions, Version 2.0." Comparative Constitutions Project. Last modified: 18 April 2014. Available at www.comparativeconstitutionsproject.org.
  24. "Constitute". www.constituteproject.org.
  25. "Read about "Protection of consumers" on Constitute".
  26. "Constitute". www.constituteproject.org.
  27. "Constitute". www.constituteproject.org.
  28. Australian Securities and Investments Commission Act 2001, retrieved 3 July 2019

Further reading

- Media related to Consumer protection at Wikimedia Commons

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