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.     

Dissemination of Consumer Law and Policy in Tanzania

This paper discusses the current consumer protection laws status in Tanzania with special focus on selected areas, including product safety and product liability, quality of goods and services, and telecommunication consumer protection. A case study on status of consumer protection in Tanzania is rendered to reveal the realities of consumer protection in the country. The paper also reflects the desired state of consumer protection in the country and how it can be achieved. Furthermore, the paper highlights the influence laws from other jurisdictions and international organisations have on the Tanzania consumer protection laws and regime.     

Policy and practice in Germany

Abstract: In Germany, EU directives have been the primary source of consumer protection legislation in banking and financial services, especially legislation on consumer credit and investment services. Otherwise, there is little significant statute law, either at federal or provincial (Länder) level, apart from a recent Consumer Bankruptcy Law. Most consumer problems have to be solved within the framework of the very general Civil Code or the law on unfair contract terms. This means that there is strong emphasis on the role of the courts in interpreting the law in specific cases. In recent years consumer organizations have played an important part in bringing class action cases in the courts – notably on issues concerned with value dating, bank charges and the early termination of mortgage and insurance contracts. There is virtually no tradition of securing consumer protection through codes of conduct. Banking ombudsman schemes have been set up in recent years, but are subject to some criticisms by consumer organizations.     

Fundamental Rights and the European Regulation of iConsumer Contracts

This paper addresses the question of how fundamental rights affect European legislation and adjudication on contracts regarding digital information services (iConsumer contracts). Fundamental rights may be seen as representing political choices for the protection of certain values in society, but at the same time, they are enacted rules of the legal system, which may be invoked to enforce the protection of the interests they represent. It is submitted that because of this double-faced nature, they can bring to the fore policy issues in contract legislation and case law. Fundamental rights can thus play a role in evaluating the policy choices that are being made in the review of the acquis communautaire in the field of consumer law. For iConsumer contracts, that means that the rights of consumers, authors, and suppliers of copyright-protected content affect the choice of rule-solutions on the European legislative level. Furthermore, these rights have an impact on the case law of the European Court of Justice in the field of e-commerce. Fundamental rights help define the various rule-solutions the Court can choose from and thus demarcate the law-making capacity of the judiciary.

An Overview of Consumer Law in Nigeria and Relationship with Laws of Other Countries and Organisations

There is no single statute dealing with the rights and obligations of parties in relation to products and services in Nigeria. The sector-specific approach is adopted with laws and agencies put in place to regulate specific areas of consumer protection such as food and drugs; energy, telecommunications, product standards, aviation, banking, and financial services. As a former colony of the United Kingdom (UK) , many Nigerian statutes are modelled on English statutes. This historical link is also reflected in the decisions of Nigerian courts which adopt, on persuasive basis, the decisions of the English courts particularly those of the House of Lords. Nigeria belongs to some international, regional, and supranational organisations which influence the consumer law of the country. This paper gives an overview of the Nigerian consumer law with particular reference to product safety, product liability, and telecommunications services and refers to the laws of other countries and organisations where applicable. The paper concludes that Nigeria has, subject to the identified gaps, attained an appreciable level of consumer protection.     

Zielsetzungen und Instrumentarien der europäischen Verbraucherrechtspolitik: Eine Analyse von Entwicklungen im Bereich des Zivilrechts

Objectives and instruments of European consumer policy: An analysis of developments in the area of civil law. The paper discusses the relationships and conflicts between the objectives pursued by European consumer policy and the means which are at its disposal. As a first step, the theoretical assumptions of this policy are analysed by an evaluation of the EC Programme for a Consumer Protection and Information Policy of 1975 and of the draft directives on product liability, on misleading and unfair competition, on doorstep sales, and on correspondence courses. It is suggested that the European approach toward consumer protection largely corresponds to the policies prevailing at the national level: Consumer protection is seen as a supplement to the traditional market and competition policy which used to be restricted to regulating competition between producers or suppliers of goods and services, whereas the new policy focuses on the relations between producers and consumers. Nevertheless, consumer policy adheres to the basic presumptions of market economy. It presupposes that the demands of the consumer have to be articulated and satisfied via market processes. It therefore primarily relies on regulations directed against misleading advertising, on protecting justified expectations as to the quality of goods or services by providing redress for losses sustained, and by endeavours aimed at securing a more rational behaviour of the individual consumer. The most important means to promote this policy on the European level are the directives which aim at consonance among national laws (Art. 100 EC Treaty). This is indicative of a market orientation of consumer policy in so far as the harmonization of law is seen as a device for overcoming discriminating effects or distortions of competition created by the differences among national laws thereby furthering a better functioning of the Common Market (Art. 3 h EC Treaty). This accordance of consumer policy and harmonization policy does not rest on firm ground, however. In consumer policy it becomes more and more obvious that the efforts to protect the interests of the consumer lead to further interventionist activities. This process also reveals the need for systematic adjustments or consultations between consumer policy and other fields of politics. A harmonization policy which is primarily centered on breaking down trade barriers and on overcoming discriminating effects of competition cannot respond to the needs and problems of such interventionist activities. Therefore, the harmonization of consumer law should be conceived as a process of formulating broader policies directed at a congruous development of the economic sphere and at an improvement of the living conditions in the Common Market (cf. Art. 2 and the preamble of the EC Treaty). Legal techniques which might be adopted to support such an orientation are (a) in the EC directives to lay down minimum standards for the national legislation, (b) to use a conflict-of-laws approach which would allow to respect and try to coordinate legitimate interests in the application of national consumer policies, and (c) the development of special rules responding to the international aspects of the exchange between producers and consumers. At present, however, European policy gives hardly any attention to the chances and problems of such an approach requiring a complicated coordination of the various legal techniques.     

Comparative analysis of Canadian,American and Swedish bankruptcy policy: why do governments legislate consumer debt?

Comparative research in consumer bankruptcy law is scarce. After profiling bankruptcy statistics in each country, the paper compares bankruptcy laws in Canada, United States and Sweden across 20 criteria and then analyses the predominate ideology underlying each law: deviant behaviour modification, consumer protection or social safety net. There is obvious tension between ideologies in each country with the punitive, deviant behaviour modification paradigm the most pervasive across all three countries. There is much we can learn from a comparative policy analysis approach, leading to the conscious development of bankruptcy policy from discernible, declared ideologies. Seven areas for future research are proposed.     

Policy and practice in the Netherlands

Abstract: As in many other areas of public policy in the Netherlands, development of consumer protection in banking and financial services has been characterized by a consensual approach. Consumer organizations have been involved along with representative business bodies in building self-regulatory systems within a statutory framework, especially in relation to issues related to overindebtedness. This approach has characterized dispute settlement procedures as well as a code of conduct on good lending practice and a national credit registration system. The Consumer Credit Act provides a system of maximum interest rates for different kinds of credit, which may be varied according to market conditions. The needs of consumers at the lower end of the credit market are specifically catered for by a network of municipal credit banks, which also provide debt settlement services.     

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.     

The Impact of EU Norms and Policies on Consumer Protection Enforcement in Serbia

Pursuant to its 2008 Stabilization and Association Agreement governing the process of EU integration, Serbia is obliged to align its consumer protection standards (including those related to enforcement) with those of the EU. This article considers the overall approach to enforcement of consumer law in Serbia, focussing in particular on the extent to which EU enforcement principles have been successfully exported to Serbia and whether the goals of EU consumer policy have been achieved. It argues that the incorporation of EU norms has brought fundamental changes to Serbian enforcement mechanisms at a formal level, such as in relation to mediation processes as well as the introduction of injunctions for the protection of collective consumer interests. In practice, however, the impact of this incorporation is quite limited. A number of factors that restrict the practical effectiveness of the mediation processes and injunctions required by EU law are explored in the article, including weak sanctions, excessive reliance on poorly resourced consumer organizations, absence of a business culture of compliance or a sophisticated and determined consumer protection enforcement culture sufficiently grounded in expertise, as well as an overarching political, legislative, and institutional instability. These factors also undermine the general aim of EU policy to achieve effective consumer protection enforcement in the Serbian context.     

Behavioural Economics in Unfair Contract Terms

The domain of behavioural law and economics is winning increasing attention also in the field of consumer policy. How the insights of behavioural law and economics can be used in policy remains, to a large extent, unclear. In this article, the following question is asked: “To what extent can the insights from the behavioural literature be applied in a way to formulate concrete suggestions to policy makers?” The authors show that many of the findings of the behavioural literature are very context-specific and hence apply only with respect to particular products or services and particular consumer groups. Formulating general policy conclusions is therefore difficult. However, as far as the specific domain of standard form contracts is concerned, the authors argue that the behavioural literature has shown that the traditional remedy (mostly resulting from information economics), being to focus on information disclosure will not be able to remedy market failures resulting from failing information and the "signing-without-reading-problem." Hence, more substantive forms of intervention in standard form contracts (e.g., resulting from collective bargaining) may be indicated as a remedy.     

The United Nations guidelines for consumer protection

On 9 April 1985 the General Assembly of the United Nations unanimously adopted a set of general guidelines for consumer protection. The Guidelines represent an internationally recognized set of minimum objectives, potentially being of particular assistance to developing countries. The adoption of the Guidelines reinforces the increasing recognition in recent years that consumer policy issues can no longer be seen as being of purely local concern but must be seen in an international context.After discussing certain objectives and general principles set out, the writer discusses the Guidelines themselves, which cover seven areas: physical safety, promotion and protection of consumers' economic interests, standards for the safety and quality of consumer goods and services, distribution facilities for essential consumer goods and services, measures enabling consumers to obtain redress, education and information programmes, and measures relating to specific areas (food, water, and pharmaceuticals).The document finally makes a number of recommendations on international co-operation on consumer policy issues. The writer refers to existing mechanisms for such co-operation and makes suggestions for further development.

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Die verbraucherpolitischen Richtlinien der Vereinten Nationen

Zusammenfassung Die Generalversammlung der Vereinten Nationen stimmte am 9. April 1985 einstimmig einer Reihe von allgemeinen Richtlinien zur Verbraucherpolitik zu. Diese Richtlinien stellen international anerkannte Mindest-Anforderungen dar, die gerade für Entwicklungsländer von besonderer Bedeutung sein dürften. Die Annahme der Richtlinien trägt mit dazu bei, daß verbraucherpolitische Fragen nicht länger mehr nur aus lokaler oder nationaler Sicht, sondern auch im internationalen Zusammenhang gesehen werden.Nach der Diskussion einzelner Ziele und genereller Prinzipien behandelt der Beitrag die eigentlichen Richtlinien, die sieben Bereiche abdecken: Gesundheitliche Sicherheit, Schutz und Förderung des Verbraucherinteresses, Sicherheits- und Qualitätsstandards für Güter und Dienstleistungen, Vertrieb und Verfügbarkeit von lebenswichtigen Gütern und Dienstleistungen, Entschädigungsmöglichkeiten für Verbraucher, Verbrauchererziehung und -information sowie Maßnahmen für bestimmte Bereiche wie z.B. Lebensmittel, Wasser oder Arzneimittel.Schließlich macht der Beitrag einige Empfehlungen für die internationale verbraucherpolitische Zusammenarbeit und bezieht sich dabei auf bereits bestehende Kooperationswege, die weiterentwickelt werden sollten.Der Verfasser sieht in der einstimmigen Annahme der Richtlinien einen bedeutenden Schritt. Sie dienen seiner Ansicht nach als wichtiger Ausgangspunkt für eine umfassende internationale Verbraucherpolitik, aber auch als Rahmen, innerhalb dessen bestehende politische Maßnahmen bewertet werden können.

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David Harland is Professor of Law in the University of Sydney (University of Sydney Law School, 173–175 Phillip Street, Sydney, N.S.W. 2000, Australia).     

The development of consumer protection in Saudi Arabia

The development of consumer protection in Saudi Arabia is of interest for a number of reasons. First, Saudi Arabia presents a unique combination of size, stage of development of the economy and wealth, coupled with strictness of Islamic observance. Second, consumer protection in the Saudi context has received very little attention from researchers. Despite the richness of Islamic teachings on the conduct of business and trade, very little has been written on consumer protection in Islamic societies other than discussions of financial markets and consumer credit and monopoly. This article briefly explores the background to the emergence of consumer protection in Saudi Arabia. Consumer credit and financial markets are excluded from the discussion. Islamic (Shari’ah) law is analysed as a basis for the regulation of consumer affairs; this system of law is then compared in its major outcomes for consumers with legal systems in advanced Western economies. The development of secular commercial law during recent times in Saudi Arabia is also considered as a parallel development to those in Shari’ah. Both strands of development are then set in the context of Saudi Arabia's 5‐year development plans and the changing position of consumer policy issues is tracked through successive plans. The institutional location of consumer policy within the Saudi government system is discussed before finally considering the changing nature of the Saudi consumer and the possible future for consumer protection in the country.     

Price Intransparency,Consumer Decision Making and European Consumer Law

Price comparison is a basic element of competition. For comparison to work, at least prices need to be transparent. Moreover, price is usually a focal point in consumer thinking and deciding on transactions. Hence, obfuscating prices can be detrimental to consumers. Therefore, it is vital for policymakers to know how transparent pricing is in reality. Commercial practices involving price intransparency can be detrimental to consumer decision making and may be associated with market failure. So, legislative intervention to ensure price transparency is sometimes warranted. Suppliers may disclose and frame pricing information in such ways as to influence consumers. For some suppliers, advantages may be gained by obfuscating price—through practices ranging from the outright hiding of price terms in the small print to subtle ways of throwing in gifts or adding charges during the vending process. Do consumers appreciate the implications of the fact that by framing price in different ways suppliers actually try to influence their demand for products? And how does the law broadly speaking respond to problems of price intransparency? In this article, behavioural science insights are combined with a legal analysis of European consumer law in order to chart some of the detrimental influences of price intransparency on the consumer decision-making process and to answer whether and to what extent European consumer law addresses these issues. In doing so, this article first reviews research from consumer psychology, marketing, and behavioural law, and economics regarding the influence of presentation, framing, and transparency of price on the consumer decision-making process. Subsequently, it describes and evaluates the legal framework offered by European consumer law and how this framework responds to practices of price intransparency. Particular problematic pricing techniques are identified and discussed. In conclusion, attention is drawn to the disadvantages of the increasing full harmonization character of European consumer law for combating price intransparency at Member State level.     

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.     

Time to Do the Job Properly—The Case for a New Approach to EU Consumer Legislation

Following 25 years of legislative activity in the field of consumer law, the EU has proposed major reforms to the consumer law acquis. Existing legislation is largely based on directives harmonizing aspects of national consumer laws. This paper argues that a more appropriate approach for EU consumer law would be legislation in the form of a regulation which is applicable to cross-border transactions only. This argument will consider the constitutional constraints of the EU Treaties, before examining the case for a cross-border-only measure. It will be argued that the cross-border approach is preferable, because it would provide clearer benefits for consumers seeking to buy goods/services across borders, while not upsetting domestic law unnecessarily, in particular in the context of e-commerce.     

Consumer Affairs in Rural New Zealand

Recent changes in many areas of Government policy as well as changes in the private sector have had major impacts on the provision of services in rural areas of New Zealand. This report describes the results of a New Zealand survey of 795 rural consumers. The results emphasise how the problems perceived as most important to people in rural areas are essentially linked to fundamental services such as housing, water, communications, and transport. Though this element of basic needs is covered in the consumer policy literature it is not a feature that tends to be emphasised. The survey also gauges some aspects of rural consumers' knowledge of their entitlements under New Zealand consumer law and their familiarity with, and use of, consumer advisory and support services.     

New patterns of consumer protection under warranty law: Lessons from the U.S. magnuson-moss warranty act

Warranty law appears to be a relevant instrument for granting protection to consumers against product disappointment. However, empirical studies concerning some warranty markets both in the United States and in West-European countries show that there continues to be no bargaining on warranties between sellers and buyers, that the most serious risks are all allocated to the user of the product, and that consumers are generally not granted an actual opportunity of challenging a breach of warranty and getting adequate compensation for losses sustained. The Magnuson-Moss Warranty-Federal Trade Commission Improvement Act which was enacted in the United States in 1975 constitutes a first comprehensive and consumer-oriented reform of traditional warranty law. It foresees new patterns of consumer protection under warranty statutes, combining warranty substance regulation with warranty information, administration, and litigation procedures. This paper first describes the Act's major provisions; it also points out some of its deficiencies. Although criticisms are formulated against the Act's ideology or basic assumptions, it is the author's opinion that it represents a decisive step towards legislative and administrative participation in the formulation of warranties. The Act undoubtedly suggests some, though not identical, avenues of reform that legislators and authorities of European countries and confederations should now propose in order to increase consumer protection against defective or unsatisfying products.     

Financial Consumer Protection Regime in Malaysia: Assessment of the Legal and Regulatory Framework

This paper examines the status of the legal and regulatory framework for consumer protection in Malaysia, an emerging economy. Using leximetrics and notions of incomplete law, the paper explores the financial consumer protection regime in the country by examining two aspects of the legal framework: the legal infrastructure and typology of laws. The Malaysian legal framework for financial consumer protection is assessed in light of the good practices identified in international guidelines issued on the themes by OECD and the World Bank. The results highlight the complementary nature and different roles that laws, regulations, and supporting institutions play in achieving a comprehensive financial consumer protection framework in the country.