Regulating Unfair Trade Practices: an Analysis of the Past and Present Indian Legislative Models

The Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act) which for the first time incorporated detailed provisions as to unfair trade practices (UTPs) in India has now been repealed and succeeded by the Consumer Protection Act, 1986 which has included the same substantive definition of UTPs. This article analyses the law as to UTPs under the repealed MRTP Act including the cases decided thereunder and compares it with the structure of the Consumer Protection Act with the objective of evaluating whether the present Consumer Dispute Redressal Agencies under the Consumer Protection Act have adequate substantive provisions and effective procedural competence to ward off UTPs. Our analysis of legislative provisions and decided cases shows that the present system of protection against UTPs under the Consumer Protection Act is blighted by a strict and restrictive definition of consumer; lack of in-house enquiry and investigation system, incompetency of traders and trade associations to pursue cases, and lack of inherent power of the Consumer Dispute Redressal Agencies to suo motu take up matters. The article uses analytical and statistical methods to quantify, in terms of actual effect, these drawbacks which significantly hamper the present system and suggests various means to improve the functioning of the system so as to effectively deal with UTPs.     

欧盟消费者法对商业创新的法律影响力评析

欧盟主要施行的消费者法和相关指令强调的是不仅保护消费者也鼓励竞争和支持创新。法律在竞争性的市场中应为消费者的保护提供一个基本的框架,即"授权"给消费者,让消费者愿意也能够在市场上对商品和服务进行选择,并且根据对商品和服务的质量和安全性的合理预期而确立起足够充分的消费者信心,而其中消费者法对实现这样的目标应该起到基础和关键性的作用。     

Dissemination of Consumer Law and Policy in South Africa

This article considers to what extent some important areas of South African consumer law have been influenced by the laws of international bodies, other countries or regional bodies or, in turn, influenced other laws in Southern Africa and beyond. It focuses on rules on product safety, product liability, remedies for defective quality of goods, some basic rules on unfair commercial practices and various aspects of consumer law relating to the use of mobile phones by South African consumers. The main piece of legislation considered is the Consumer Protection Act 68 of 2008 (“CPA”), which came into force in 2011. The article considers whether aspects of this legislation were influenced by the EC Product Safety Directive, EC Product Liability Directive, EC Consumer Sales Directive, EC Unfair Commercial Practices Directive and EC Directive on Misleading and Comparative Marketing. It shows how the relevant provisions of the CPA influenced the laws of some African countries. The article also considers various issues faced by consumers in the mobile phone sector, including defective handsets, defective services, the high cost of mobile calls and data, the lapsing of “unused” data after short periods, data “disappearing” faster than expected, unfair contract terms, unsolicited marketing and the complexity of mobile phone contracts, which leads consumers to overestimate or underestimate their future usage, therefore paying too much because they are on an ill-suited plan. Conclusion of agreements via mobile phones, marketing of additional services like ringtones and apps and unsolicited marketing via mobile phones are also considered. Some complaints regarding the use of mobile phones should be better provided for in legislation, and enforcement of consumer rights in this sector could be improved.     

Early Experiences of the Enforcement of the Unfair Commercial Practices Directive in Scotland

This exploratory study examines the early impact of the Unfair Commercial Practices Directive 2005/29/EC on enforcers in Scotland within the context of current policy developments regarding the use of civil and criminal enforcement mechanisms within the UK. The Directive has been implemented in the UK by means of the Consumer Protection from Unfair Trading Regulations 2008 SI 1277 and the duty to enforce the Regulations falls primarily to local authority trading standards services. Twenty-one in-depth interviews were conducted with a range of officers employed within the trading standards service based in eight local authorities in Scotland on their perceptions of the new Regulations. The main findings were that officers’ views of the new Regulations and the civil and criminal enforcement routes available to them was affected by structural, operational, and cultural issues which varied from one authority to another. A number of officers were finding the Regulations a challenge to old ways and there was evidence that many felt unprepared for the Regulations. A number of positive views were expressed regarding the flexibility of the new Regulations and the advantages of the provisions relating to misleading omissions. Overall officers’ experiences of the Regulations were heavily influenced by the complaints received by their particular local authority service.     

Rectifying Consumer Protection Law and Establishing of a Consumer Court in Indonesia

Journal of Consumer Policy - In 2001, Indonesia established the Consumer Dispute Resolution Body (CDRB) based on the instruction of the Consumer Protection Act (CPA) in 1999 to provide consumers...     

Colston E. Warne Lecture: Is It Time for Another Round of Consumer Protection? The Lessons of Twentieth-Century U.S. History

The first year of Barack Obama's presidency has returned consumer issues to center stage, with several contentious struggles over consumer protection. This moment can be viewed as a fourth wave of the twentieth-century consumer movement, and a comparison with the first three waves (during the Progressive Era, the New Deal, and the 1960s–1970s) offers instructive insights. In particular, the contemporary battle over the Consumer Financial Protection Agency bears striking similarities to the failed campaign for a Consumer Protection Agency in the 1970s.     

Book reviews

Book reviews in this article: Bibliography of Consumer Law within the European Community — 1983–88. Maniet, F. (Ed.) Electronic Funds Transfer and Consumer Protection. Bourgoignie, Th. & Goyens, M. (Eds.)     

Consumer rights of the elderly as vulnerable consumers in South Africa: some comparative aspects of the Consumer Protection Act 68 of 2008

Although consumer protection is not a new concept in South African law, the Consumer Protection Act 68 of 2008 (CPA) now provides for a much more comprehensive and encompassing mechanism to protect consumers. Consumers are protected, not only in the provision of goods and services, the conclusion of contracts but also in the promotion and marketing thereof. The CPA further provides special protection to a particular type of consumer which is the vulnerable consumer and includes elderly consumers. Importantly, and for the first time in the history of South African law, the consumer is provided with eight core fundamental consumer rights. As this contribution is an attempt to provide an interdisciplinary analysis from a legal perspective, identification of what is considered to be an ‘elderly' consumer, needs to be assessed by referring to relevant empirical studies from both an international as well as South African perspective. The focus of this study is on the protection of the elderly as a category of vulnerable consumers in terms of the CPA. The investigation will attempt to show that the elderly is protected in terms of all eight of the fundamental consumer rights within the CPA. Special reference will be made to two fundamental rights of the consumer in terms of the CPA. First, the elderly consumer's right to equality in the consumer market (Part A of the CPA) which provides additional protection as the CPA also refers to the Constitutional right to equality. Second, the elderly consumer's the right to fair and responsible marketing (Part E of the CPA) which in terms of the research is compared with the EU Unfair Commercial Practices Directive. Certain problems regarding elderly consumers are identified and the importance of consumer rights as well as the implementation of the correct consumer policy is argued.     

Dissemination of Consumer Law and Policy in Brazil: The Impact of EU Law

Journal of Consumer Policy - This paper analyses the influence of European Law on Brazilian Consumer Law. It starts by describing the general features of Brazilian Consumer Protection law,...     

BOOKS REVIEWED AND RECEIVED

Book reviews in this article: Consumer Protection. The Consumer Society. Ed, by I. R. C. Hirst and W. Duncan Reekie, Tavistock Publications Women at Work. By L. Mackie and P. Pattullo. Research Studies in Advertising. 10. The Consumer Movement and The Consumer. By Christina Fulop.     

Consumer Law and Policy in Kenya

This contribution seeks to examine the consumer protection law and policy in Kenya with a view to understand how consumer issues, such as product safety and product liability, are addressed as well as the remedies for defective goods. It also seeks to understand the available provisions on the safety standards of consumer products, such as mobile phones, by highlighting the consumer issues that arise for mobile phone users with particular reference to the services provided by mobile network operators (MNOs) – i.e., the financial services and products – and how the consumer protection regime has addressed them. It will conclude by examining how the Kenyan consumer law has manifested itself, either by its influence on other states’ consumer laws and policies or the way(s) in which its own laws have been influenced by foreign and supranational consumer laws. References will be made with regard to the influence by the European Commission (EC) Product Safety Directive, the EC Product Liability Directive, the EC Consumer Sales Directive and the EC Unfair Commercial Practices Directive. Furthermore, this contribution will highlight the challenges encountered with respect to the achievement of a consumer protection regime in Kenya, as a result of the fragmentation of the law and policies.     

An empirical assessment of the Consumer Agency Model: Evidence from India and China

Abstract

This research empirically validates the Consumer Agency Model which illustrates consumer reactions to the introduction of new Western products to emerging markets. This study represents the first quantitative effort to test the framework in a comparative field study of consumer attitudes towards a franchised business in the two largest emerging markets globally, China and India. It builds on the original model with McDonald’s as the prototypical representative of the Western franchise industry. The analysis confirms existence of the Consumer Agency Model with remarkable similarity in both countries. Implications for franchise companies as they target the two investigated markets are provided.     

Developments in Consumer Protection in India

This paper surveys the major developments in the field of consumer protection in India since 1984, when the statutory provisions for regulating unfair trade practices were incorporated for the first time.Among the developments described in the paper is the strengthening of provisions for consumer protection through amendments to the Act regulating restrictive and monopolistic trade practices (the MTRP Act). Public-sector undertakings and co-operative societies have been brought within the purview of the Act, and consumers have obtained the right to participate in inquiry proceedings before the MRTP Commission.Consumers and their associations have been given the right to seek redress of grievances arising out of the violation of certain pieces of legislation, including the Drugs and Cosmetics Act. The Consumer Protection Act, 1986, was enacted in order to provide speedy and inexpensive redress of consumers' grievances. Redress can now be sought before any consumer court also for negligence or deficiency in medical services.The Bureau of Indian Standards Act, 1986, has strengthened the measures for the standardisation and quality control of manufactured goods.A Consumer Welfare Fund has been set up to provide financial assistance to voluntary consumer organisations and for the general development of consumer movement in the country. A spurt in voluntary consumer organisations in different parts of the country can also be observed.Other developments include the establishment of a separate Department of Consumer Affairs in the Union Government and the setting up of a Consumer Product Testing Laboratory.     

The Evolution of Consumer Product Safety Policy and Regulation in India

Consumer product safety in India is undergoing a series of structural reforms, encompassing general consumer protection and specific product safety regulation. This article critically examines the state of consumer product safety as it has developed since the adoption of the original Consumer Protection Act 1986 and Bureau of Indian Standards Act 1986 and on that basis puts forward a first reasoned analysis of the major reforms currently under discussion (the Consumer Protection Bill 2015) or recently passed but not yet implemented (the Bureau of Indian Standards Act 2016). The analysis is framed against the backdrop of a preliminary discussion of the constitutional architecture of India, which is in itself a source of complication in the development of coherent consumer policies. The picture emerging from this article shows that, while progress is being made, the field of consumer product safety in India is a difficult work in progress where policy and regulatory developments are hard to achieve incrementally, and structural reform come at the cost of fundamental choices the feasibility of which might prove difficult.     

Preliminary ruling on discriminatory advertising

Finland has no special marketing regulations for dealing with sex discrimination. The paper reports on a recent decision of the Market Court according to which the general clause about good practice of the Consumer Protection Act can be applied to discriminatory advertising. But the Finnish Consumer Ombudsman believes that discriminatory advertising should be regulated separately by a special provision entered either into the Act on Equality between Men and Women or into the Consumer Protection Act.

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Zusammenfassung VorlÄufige Regelung diskriminierender Werbung in Finnland Finnland hat keine speziellen rechtlichen Regelungen gegen Geschlechterdiskriminierung in der Werbung. Der Beitrag berichtet über eine neuere Entscheidung des finnischen Marktgerichtshofes, nach der allgemeinere Regelungen des Verbraucherschutzgesetzes auf geschlechtsdiskriminierende Werbung angewendet werden können. Allerdings ist die finnische Verbraucher-Ombudsbehörde der Meinung, da\ diskriminierende Werbung durch eine eigene Bestimmung geregelt werden sollte, die entweder in das Gesetz über die Gleichstellung von Mann und Frau oder in das Verbraucherschutzgesetz eingefügt werden sollte.

     

Usage of,and satisfaction with,a governmental consumer protection agency

State consumer protection agencies provide alternatives for consumer inquiries and for redress when consumers are unable to obtain satisfaction. In this study, the major objectives were to determine whether consumers used the services of the Kentucky Consumer Protection Division, the frequency of contact, the method of contact, the satisfaction/dissatisfaction with handling of inquiries or complaints and characteristics of inquirers/complainers. Four different surveys were used to obtain the data. The data analysis indicated that a large percentage of those who made inquiries or complained were satisfied. However, only a small percentage of the consumers had contacted the CPD, and very few used the hotline in making requests or complaints. Those who had contacted the CPD were younger, better educated and had higher incomes. Among the recommendations are that increased efforts be made to publicize the hotline and other CPD services.     

Is it an offence to overcharge?

This paper considers whether a trader commits an offence when he makes a mistake and overcharges a customer. It examines the offences found in section 20 of the Consumer Protection Act 1987 - as defined in section 21(1)(a) - and looks at the effect of a recent decision of the appeal courts.     

Consumer Class Actions: Are They a Solution for Enforcing Consumer Rights? The Israeli Model

Class actions were introduced into the Israeli legal system in order to overcome the difficulties in the enforcement of consumer laws. Despite extensive consumer legislation during the 1980s, consumer laws were not enforced until the mid 1990s. Only since the incorporation of class action procedures in the Consumer Protection Law in 1994 have consumer actions become more common. The introduction of class actions under the Consumer Protection Law (CPL) led to a revival of consumer protection law. As a result, legal discourse in the field of consumer law has completely changed. Nonetheless, even after 1994 more than 90% of class action applications were dismissed at the early stages. This paper analyses the reasons for the poor results of this procedure, and suggests reform by amending the CPL. The conclusion presented in this paper is that consumer class actions have great potential, but that their correct implementation depends on a better understanding of the purpose of consumer legislation.     

Reflections on Consumer Law and Policy in Seychelles

Consumerism only reached Seychelles after a wave of market-liberalization reforms adopted in 2008 as a response to a dire economic crisis. Consumer law is therefore only a recent phenomenon in the country. The main sources of inspiration for Seychelles legislation are the UN Guidelines on Consumer Protection, the EU Directive on unfair contract terms, and the South African Consumer Protection Act. Policy initiatives tend to be modelled either on other small island countries or on Commonwealth countries. The formal legal framework is overall modern and in line with international guidelines. However, the article identifies two sets of challenges encountered in practice. First, local standardization efforts fail to address the matter of poor-quality products entering the market, and this lack of local capacity is insufficiently complemented by reliance on international standards. Secondly, consumers seldom rely on the adjudicatory mechanism provided by consumer laws and informal settlement mechanisms are preferred, which comes at the cost of depriving consumer law operatives of precious interpretative materials, leaving areas of legal uncertainty. While policy guidance from the political sphere would be needed, it is unclear how much attention consumer matters will receive in the medium term.