Автор работы: Пользователь скрыл имя, 07 Ноября 2012 в 18:37, реферат
Consumer protection consists of laws and organizations designed to ensure the rights of consumers as well as fair trade competition and the free flow of truthful information in the marketplace. The laws are designed to prevent businesses that engage in fraud or specified unfair practices from gaining an advantage over competitors and may provide additional protection for the weak and those unable to take care of themselves. Consumer protection laws are a form of government regulation which aim to protect the rights of consumers. For example, a government may require businesses to disclose detailed information about products—particularly in areas where safety or public health is an issue, such as food. Consum
Consumer protection consists of laws and organizations designed to ensure the rights of consumers as well as fair trade competition and the free flow of truthful information in the marketplace. The laws are designed to prevent businesses that engage in fraud or specified unfair practices from gaining an advantage over competitors and may provide additional protection for the weak and those unable to take care of themselves. Consumer protection laws are a form of government regulation which aim to protect the rights of consumers. For example, a government may require businesses to disclose detailed information about products—particularly in areas where safety or public health is an issue, such as food. Consumer protection is linked to the idea of "consumer rights" (that consumers have various rights as consumers), and to the formation of consumer organizations, which help consumers make better choices in the marketplace and get help with consumer complaints.
Other organizations that promote consumer protection include government organizations and self-regulating business organizations such as consumer protection agencies and organizations, the Federal Trade Commission, ombudsmen, Better Business Bureaus, etc.
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 be protected by promoting competition in the markets which directly and indirectly 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.
Consumer protection law or consumer law is considered 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 consumer/business interactions.
Consumer protection laws deal with a wide range of issues including credit repair, debt repair, product safety, service and sales contracts, bill collector regulation, pricing, utility turnoffs, consolidation, personal loans that may lead to bankruptcy.
Cases:
Case #1
“No Private Cause of Action to Enforce Food, Drug and Cosmetic Act”
Facts:
Plaintiffs sued Procter & Gamble (P&G) for two “cold and flu symptom relief” products that contained vitamin C. They contended the products were developed to capitalize on a common misconception that vitamin C is useful for treating or preventing the common cold. Plaintiffs contend the products are ineffective and that advertising is false and misleading. They claim violation of state consumer statutes and violation of the Food Drug and Cosmetic Act (FDCA). P&G moved to dismiss the class action suit.
Decision:
Motion granted. There is no private right of action to enforce the FDCA. Not only is a private party precluded from bringing suit to enforce the provisions of the FDCA, they may not use other federal statutes or state unfair competition laws as a way to bring a private cause of action that is based on violations of the FDCA. A state-law claim does not exist where the claim is in substance a claim for violating the FDCA, that is, when the state claim would not exist if the FDCA did not exist. The main purpose of the advertising restrictions in the FDCA and its regulations is not to protect consumers from deceptive advertising, but to further the FDCA’s underlying goal of ensuring drug safety. If plaintiffs can identify specific representations by defendants that are literally false, misleading, or contain material omissions, the claims are actionable under state consumer fraud laws and not precluded by the FDCA. Generally, to prevail on a claim that a defendant misrepresented the effectiveness of its product under state law, rather than stating a claim under the FDCA, plaintiffs must show that the misrepresentations are false or misleading, not merely that they are unsubstantiated by acceptable tests or other proof. Consumers’ claims that they purchased certain cold medicines based on manufacturer’s misleading advertisements as to efficacy of vitamin C in the medicine, rather than cheaper alternatives, were insufficient to plead ascertainable loss.
Case#2
“Federal Poultry Regulation Does Not Prevent State Warnings about Poultry Safety”
Facts:
The Physicians Committee for Responsible Medicine (PCRM) sued seven chain restaurants in California state court seeking an injunction, civil penalties, and declaratory relief to prevent the restaurants “from continuing to sell grilled chicken products to consumers without clear and reasonable warnings about the carcinogenic effects of those products.” Grilling chicken creates the chemical PhIP which, the suit claimed, is subject to warning under the California Safe Drinking water and Toxic Enforcement Act. PCRM demanded that there must be signs posted such as “Warning: Thoroughly cooked chicken, including the chicken served in this restaurant, contains chemicals knows to the State to cause cancer.” The restaurants replied that such warnings were preempted by the federal Poultry Products Inspection Act (PPIA). The trial court granted summary judgment in favor of the restaurants. PCRM appealed.
Decision:
Reversed. Congress may expressly or impliedly preempt state law. Express preemption is when it is stated in federal law. Implied preemption exists if state law conflicts with federal law. The proposed warning for grilled chicken does not constitute labeling under the PPIA, and that statute does not prohibit all state regulation of poultry, so state health warnings are not preempted. Hence, the PCRM may pursue its effort to require health labels be posted in restaurants that serve grilled chicken as part of compliance with state law regarding toxic chemicals.
Case#3
“Communication About Debt to Debtors Attorney Not Violation of FDCPA”
Facts:
Villegas had filed for bankruptcy. Weinstein, a debt collector, sent a letter to the lawyer representing Villegas in bankruptcy, threatening to sue for a debt owed. Villegas sued Weinstein for violation of the Fair Debt Collection Practices Act (FDCPA) for sending the letter to her lawyer rather than to her. Weinstein moved to dismiss the complaint.
Decision:
Motion granted. There is a split of authority among the courts as to whether this action is a violation of the FDCPA. This court holds that it is not a violation. First, a consumer and her attorney can fall into the category of the same “person” for purposes of the statute since the attorney, representing the debtor in bankruptcy, knows the status of the debts. Such communications are not subject to the “least sophisticated consumer” standard of the FDCPA since attorneys are not such consumers. It was not unreasonable to assume that the attorney was the intermediary in settlement of debts owed by Villegas. The claim itself was not false.
Case#4
“Restaurant Must Fully Comply with ADA Access Rules”
Facts:
Chipotle is a chain of restaurants. Standard design is a 45” wall that customers walk along as they tell food service employees which ingredients they want in their burrito or other Mexican item. The employees work on a 35” tall counter. Antoninetti is a paraplegic who uses a wheelchair for mobility. He could not see the food because of the wall and sued, claiming a failure to accommodate his disability in violation of the Americans with Disabilities Act (ADA). In response, Chipotle issued a policy that in such cases the customers would be provided samples of the various ingredients, either in little cups as they went along the line, or at a table, if the customer so prefer. Antoinetti rejected that accommodation as inadequate and proceeded with litigation. The district court dismissed his suit. He appealed.
Decision:
Reversed. Chipotle is in violation of the ADA. The statute says that accommodation must be “equivalent facilitation” and customers in wheelchairs must have “lines of sight comparable to those for members of the general public.” The offer to show disabled customers the alternatives or to bring them to their table does not satisfy those requirements. The setup of the customer line violates the ADA as Antoninetti could not view the food choices. As such, Antoninetti is due injunctive relief that Chipotle come into compliance with the ADA by lowering the 45” wall. Antoninetti may collect damages in compensation for the violations that occurred in his visits to Chipotle and is due attorney fees.
Case#5
“Phone Company Has No Right to Use Information from Competitors about Customer Loss”
Facts:
When a telephone company customer decides to change service providers, the customer is entitled to take the existing phone number to the new service provider. The new provider initiates a service request that requires the original provider to take the steps needed to release the phone number to another company on behalf of the customer. The old provider knows at that point that the customer is switching providers. Verizon was in competition with several cable companies in California that were offering phone service. Verizon would call their customers when they received a service request from a cable company and offer the customer a better deal to stay with Verizon. The cable companies complained, and the Federal Communications Commission (FCC) ordered Verizon to stop contacting their customers who were moving service. Verizon petitioned for review of the FCC order.
Decision:
Petition denied. FCC regulations require the phone companies to use the information from the service request only to comply with the request, not use it as a marketing tool to make an appeal to defecting customers. The information involved is proprietary, as the new provider is the holder of the information about the desire of the customer to begin new phone service. The existing service provider has no right to exploit that information to its benefit. It is not a violation of its free speech right to prohibit the company from using the information.
As in the majority of Eastern and Central European countries, Ukraine adopted a specific law on consumer protection in the 1990th. In fact, Ukraine was one of the first countries in the region to adopt a Law “on consumer rights protection” in 1991 (further the Law).The Law has been revised and amended several time with the last amendments dated December 2005. The last amendments where partly aimed at harmonizing the law to the acquis, and specifically to the EC Directives on Distance Selling, Doorstep Selling and Product Liability.
Alongside with positive changes, the amendments have brought changes that have been less popular among consumer rights advocates in Ukraine. The most noticeable example is that it has narrowed consumers’ rights when purchasing damaged goods.Article 8th of the Law regulates consumer’s rights if purchased goods are of improper quality. The amended versionof the Article introduces the concept of “substantial defect” of goods and services. The level of “substantiality” is not specified in the Law, neither is the procedure of its assessment. The Law also states that there should be independent testing available, but there is no such system and the only existing system is the state testing system, which is underfinanced. Thus, to prove the extent of defect, the consumer has to bear the cost or to turn to the seller’s service centre, where the tester’s neutrality could be justified questioned.
The Law states that a consumer is a physical entity that purchases, orders, uses or intends to purchase or order a product or service for his or hers own needs without direct relation to commercial activities.Thus, a consumer is a physical entity. However, the Ukrainian legislation is ambiguous on who constitutes a consumer. According to the Law of Ukraine “On electric energy” (Article 1), both physical entities and economic entities can be consumers of electric energy. In the Law of Ukraine “On natural monopolies” (Article 1), physical and legal entities are named consumers. Such ambiguous interpretation of the notion of “a consumer” takes place in other legislative acts as well, for example, in the Law of Ukraine “On telecommunications”.
Therefore, the notion of “a consumer” in practice can have double interpretation and can cause confusion.
Article 4 of the Law lists the seven major rights of consumers:
This list is not exhaustible, since paragraph 2 of Article 4 of the Law refers to other rights determined by legislation on consumer rights protection.
According to the Law ”On Standards, Technical Regulations and Conformity Assessment Procedures”, conformity assessment is an activity that results in a guarantee that a product confirms to the requirements established by the legislation. Conformity assessment is used on the pre-market stage of introducing products into the market and is performed by the manufacturer himself or with the involvement of the third party – a certification body.
Mandatory and voluntary performance of conformity assessment is foreseen by the Law. Conformity assessment in the legislatively regulated sphere is mandatory for manufacturers and suppliers. In the legislatively regulated sphere conformity assessment is performed to correspond to the requirements of technical regulations on conformity assessment according to the procedures set up in it.
For the period before introducing the technical regulations on conformity assessment of production in Ukraine, conformity assessment is used through the procedure of mandatory certification for products by a Decree of the Cabinet of Ministers of Ukraine “On standardization and certification”
At the central level of executive power the main responsible agencies for consumer protection are – State Consumer Standard of Ukraine, the Ministry of Health of Ukraine (sanitaryepidemiological and veterinary services), Ministry of Agricultural Industry and partially, only in the area of managerial functions, the Ministry of Economy of Ukraine. The indicated agencies are responsible for the function of market protection.
State Consumer Standard of Ukraine (SCS) has a special function besides market protection – it should protect consumer rights. The function of market protection and the function of consumer protection are similar. But they differ in terms of object and subject of the law. In market protection the object is represented by the legal relationship of the market participants – manufacturers, suppliers, buyers, etc. (both physical and legal entities).
In consumer rights protection – it is the rights of consumers (physical entities). The function of consumer protection is predominantly carried out by SCS except for market protection functions where the object of law is not the rights of consumers but rather norms that set requirements for safety and quality of products and services.
The main task of SCS is implementing state policy in the sphere of consumer protection, standardization, metrology and certification and performance of management in this sphere as well as intersectorial coordination and functional regulation on consumer protection, standardization, metrology and certification.
The legal substantiation of local self-governance bodies’ is defined in Article 28 of the Law “On Consumer Rights Protection”. The consumer protection authorities of local selfgovernance bodies are weaker than the authorities of the State Consumer Standard bodies. According to Article 30 part “b” paragraph 3 of the Law of Ukraine “On Local SelfGovernance in Ukraine”, control over the legislation on consumer rights protection is a delegated function for local authorities. After the adoption of amendments to the Law of Ukraine “On Consumer Rights Protection” in 2005, these delegated authorities can be easily related to the own authority of these bodies.
However, in practice the delegation of competencies has not been taking place. More over, decentralization of competencies has been very slow. Consumer rights protection administrations at the local authorities cover only 20% of the Ukrainian territory. At present in Ukraine, there are only 5 of them out of 25 oblast (20%) – in Kyiv City, Donetsk, Dnipropetrovsk, Kharkiv and Vinnitsa oblasts. The opening of such administrations inOdessa, Rivne and Chernigiv is expected. A major challenge in establishing local consumer protection functions is the constant lack of recourses of local governance authorities to fulfil delegated competencies. At the present, consumer rights protection funding is still conducted at the discretion of public officials.
Unlike regional administrations of the SCS, the local authorities are institutionally more independent, especially from the burdensome functions of market protection and consumer rights protection.
According to the Law a manufacturer is responsible to provide the following consumer information (Article 15):
The indicated type of information is mandatory information.
Consumer information is indicated in accompanying documentation, on the label or in a different way accessible for a consumer to read. The Law does not set up the obligation of a manufacturer / seller to complement a product with the indicated information; rather it encourage him/her provide the information. This can cause fraud by a manufacturer or a seller related to the provision of incomplete information and therefore limiting a consumer’s capabilities to use the purchased product.
The role of mass media in the dissemination of consumer information is important in the period of establishing a market economy in Ukraine. However there are no stable periodic mass media means for a broad range of consumers. Separate publications of the SCS and separate private initiatives has nor found powerful support nor mass demand by consumers.
In Article 15 of the Law it is stated that information about a product is not considered as advertising. Many media use this situation and provide any information about a product. Itmeans that under the request of manufacturers a number of mass media means proactively use information field for “loading” consumers with those very data that encourage them to purchase products. As a result, consumer information drowns in commercials for products.
There are two TV-programs for consumers in Ukraine.
Article 5 of the Law indicates that the state should create the conditions for acquiring necessary knowledge on consumer rights (the right to consumer education). But unfortunately the Law does not elaborate on the mechanisms of consumer education.