The Gazette 1977

AUGUST/SEPTEMBER

GAZETTE

New Horizons in Law: Consumer Protection Legislation

EDWARD J. DONELAN, B.A., Barrister at Law, Vice-Chairman Consumers' Association of Ireland.

Mrs. Murphy, two children at her side, pregnant with a third, stands in a supermarket queue: the inevitable display of chocolates at the checkout desk prompts the conditioned plea from the children for "Zapo" chocolate bars. Mrs. Murphy, her mind dulled by tiredness, half remembering that "Zapo is the ideal snack between meals", reaches instinctively for the chocolate bar. The law steps in at this stage to warn Mrs. Murphy in Latin "caveat emptor". The law says that Mrs. Murphy contracts freely, but long before buying, her decision has been influenced by newspaper, television and billboard advertisements. Her tastes are determined by colourful packages and the special offers of marketing experts. With inflation as a constant threat to her income she will try to save and will instinctively leap at special offers, sometimes without due regard to value. Indirect Protection Although the law allows buyers and sellers to contract freely and the basic rule is "caveat emptor" the law occasionally steps in to protect the consumer. Where the Sale of Goods Act 1893 applies, the law lays down standards of fitness for purpose and merchantable quality. The law indirectly lays down standerds to protect consumers' health in the Public Health Acts and directly protects the consumer where orders are made under the Institute of Research and Standards Act, 1961 and the Food Standards Act, 1974. Orders, however, are seldom made under these Acts. Even where the consumers have laws to protect them they may be unaware of the laws or may lack the resources to uphold a claim. Thus for many people the law is irrelevant to their needs; much of the law affecting consumer transactions was developed in an age when buyer and seller knew each other and the buyer could easily determine the composition of goods and see if they fitted his purpose. More positive help needed The consumer today is presented with a variety of pre- packed goods which cannot be examined until they are brought home; complex electrical equipment, like television sets and washing machines, need spare parts and maintenance, sometimes from a factory in another country; clothing and footwear are made from a variety of natural and synthetic materials. In these circumstances the buyer needs more positive help than a warning to beware and a diverse collection of laws which provide only a small measure of indirect protection. Need to discriminate In addition to the problem of choosing goods which suit his needs, the consumer must learn to discriminate in

his reactions to advertising; he must learn to question whether manufacturers claims are true — whether "X" really washes whiter. He must learn to recognise that his choice of product "Y" which he associates through advertising with good times and popularity will not automatically bring him good times or popularity. Consider the problem of the old-age pensioner who sees a certain product advertised everywhere. At his local supermarket he sees the product on sale — "three packets for the price of two". He needs half a packet but one packet will cost him more than a third of the price of the special offer. He tries to make a comparison with competing product and finds it packed in a different size so that comparison is impossible. These situations illustrate that the terms of trade between buyer and seller have altered since the sixteenth century days of "caveat emptor", and the nineteenth century Sale of Goods Act. Advertising, marketing and modern packaging do not leave a consumer with such a measure of freedom making a contract. Other Countries In other countries the changes in the terms of trade have been reflected by changes in the law and the development of institutions which serve to create a better balance between buyer and seller; in Britain, Sweden, Canada and the United States laws have been passed to prevent misleading statements in advertising and to encourage more honesty in trades descriptions. Other laws prescribe rules for packaging and labelling of consumer products in order to help the consumer make a more informed choice between goods on sale. In Britain, Sweden and the U.S. a system of small Courts has been created where consumers can litigate small claims with a minimum of formality and expense. Consumer Education These countries, to mention a few, have also recognised that laws are of little use unless they are understood by the ordinary people. Consumer education is thus encouraged in schools so that children learn to spend as well as to earn their money, informative leaflets are produced and distributed through Citizens Advice Bureaus, Consumer Advice Centres, which inform people how to spend wisely and get value for money. E.E.C. Many countries have thus recognised the need to protect consumers and help them to spend wisely. The Council of Europe have drawn up a Consumer Charter, but more important, one of the basic aims of the Treaty of Rome is, "the constant improvement of living standards of the peoples of the Community". 129