Draft Model Consumer Protection Bill 2011

At this moment a new consumer protection bill is under discussion in the CARICOM Member States

Here some parts of the content.

Model Consumer Protection Bill

The Caribbean Community (CARICOM) Secretariat submits for the review of the Meeting of the Regional Chief Parliamentary Counsel, the CARICOM Draft Model Consumer Protection Bill.

The Draft Model Consumer Protection Bill as Attachment I to this Working Document has been prepared by the CARICOM Secretariat in consultation with Members. The main objective of the Bill is to provide for, inter alia, the promotion and protection of consumer interests in relation to the supply of goods and the provision of services; to ensure protection of life, health and safety of consumers and to advance their social well-being within the market system; and the establishment of a Consumer Affairs Commission.

The draft Bill, which has been under development for a period of close to one (1) decade, has been reviewed at several CARICOM meetings, including those of Heads of Consumer Affairs Departments and non-government consumer organisations, as well as the meetings of Chief Parliamentary Counsel. These meetings include, in more recent times, the following:

                 (i)                        Second and Third Meetings on Consumer Affairs convened in Georgetown, Guyana  on  11-12 October 2004 and 7-8 May 2008, respectively;

               (ii)                        Thirty-Second Meeting of Regional Chief Parliamentary Counsel  in Jamaica on 11-15 June 2007; the Thirty-Third Meeting of Regional Chief Parliamentary Counsel  in Guyana on 9-13 July 2008 and the Fortieth Meeting of Regional Chief Parliamentary Counsel  in Grenada  on  8-12 September 2008;

             (iii)                        Fourth Meeting on Consumer Affairs convened in Port-of-Spain, Trinidad and Tobago on 9-10 March 2010; and

             (iv)                        Meeting of Directors of Consumer Affairs to Review the Draft Model Consumer Protection Bill in Bridgetown, Barbados on 9-10 September 2010.

The draft Bill is a model legislation designed to implement Articles 184 and 185 of the Treaty of Chaguaramas and has been approved by the Council for Trade and Economic Development  (COTED) at its Thirty Second Meeting, held in Georgetown, Guyana in May 2011, where it:

“Welcomed the completion of the CARICOM Model Consumer Protection Bill which has been in the process of development over the last ten years;

Noted the institutional provisions in the Model Bill for a national Consumer Affairs Commission and the options which were available to Member States for establishing the Commission;

Agreed that, with respect to the options for the institutional provisions at the national level, the transition from existing entities which were currently involved in administering price controls into the Consumer Affairs Commission was the most feasible option; [and]

Recommended the Model Consumer Protection Bill to the Legal Affairs Committee for its approval”

The draft Model Bill is based on the premise that enterprises/suppliers should act in accordance with fair business practices and should take all reasonable steps to ensure the safety, quality and reliability of the products that they provide. The Bill will serve as a benchmark, notwithstanding some Members have already enacted consumer protection legislation

The overall intention is to increase consumer confidence and consumer satisfaction.

Important provisions include the following -

(i)         Suppliers should ensure that the products they provide meet all agreed or legal required standards for consumer health and safety (including those pertaining to health warnings and product safety);

(ii)        That accurate, verifiable and clear information is provided by suppliers to consumers so as to enable consumers to compare products and make informed decisions.  It should be noted that what is considered ‘sufficient information’ can change over time and suppliers need to be responsive to these changes.  The general intention is to ensure that suppliers do not engage in deceptive, misleading, fraudulent and unfair practices;

(iii)       Through the Consumer Affairs Commission, the Bill provides consumers with access to fair, easy to use, timely and effective dispute resolution and redress mechanism without unnecessary cost or burden.  There are also provisions that allow consumer groups to bring actions;

(iv)       There are also provisions that support consumer education, the aim of which is to, inter alia, improve the ability of consumers to make informed decisions;

(v)        Consumer privacy is also protected as reflected in certain provisions which seek to ensure the security of personal data;

(vi)       Consideration is also given to the specific challenges that digital commerce may pose for consumers as well as the needs of vulnerable and disadvantaged consumers.

This draft Bill is divided into twelve parts.  A brief review of each part is provided with a few recommendations, so that the final version could be further modified with the consent of Members before it is approved by the Legal Affairs Committee (LAC). 

Part I - This part provides for the interpretation of important terms.  The terms “consumer” and “supplier” are given a wide meaning.  It is recommended that the definition of the term “services” should exclude the application of this Act to financial and banking services, as this draft Bill is not intended to cover such services.

Part II – This part provides for the establishment of a Consumer Affairs Commission.  The constitution of the Commission is relegated to Schedule 1.  The Commission has executive and judicial roles and determines consumer disputes between a supplier and a consumer.  It is a “special animal” created by the draft Bill.  It is therefore recommended that provision should be made in the draft Bill to appoint three legally qualified persons to the Commission in order hear consumer complaints.

Part III – This part deals with complaints.  It is possible to make complaints to the Minister or the Commission.  It is also possible to file a complaint with the courts.  These procedures are dealt in great detail in the draft Bill.

Part IV –This part deals with consumer rights.  It states that if there is an ambiguity in any consumer Agreement, the provisions of the Agreement should be interpreted in favour of the consumer.  This part recognises the consumer’s right to choose, examine, rescind or cancel any consumer contract.

Part V –This part deals with duties of suppliers.  The supplier is under a duty to provide information, price, proper identification, environmental factors, warranties, repairs and refunds.  Under the EU Directive, a supplier should provide a two-year warranty for new goods and a one-year warranty for used goods.  It is recommended that the warranty periods should be more specific.

Part VI - This part deals with unfair trade practices.  These include faults, misleading or deceptive representation.  This part also prohibits restrictive trade practices, unfair and unjust transactions.  It is recommended that pyramid selling of goods or services should be deleted, as such ponzi schemes are generally dealt with under financial services legislation.

Part VII – This part deals with unfair terms.  The interpretation of what constitutes an “unfair term” is further elaborated in the Third Schedule.  The modification of any unfair terms under the Consumer Protection Act 2010 could be render a consumer contract void.

Part VIII – This part deals with product liability.  The term “product” is given a wide meaning to include animal and agricultural produce.  Under the draft Bill, liability is restricted in some instances in civil proceedings.  As sovereign immunity under common law has undergone changes, it is recommended that the liability of the state or Crown under contractual obligations should be recognised. 

Part IX – This part provides for consumer safety.  The term “consumer safety” is given a broad definition in section 81 to encompass general safety requirements.  The safety requirements can be further expanded by safety Regulations.  Special provisions are inserted to deal with goods with inherent risks.  It is recommended to have a treaty arrangement for the establishment of a regional alert system for the Caribbean region on the lines of the EU Directive 95/2000.

Part X – This part deals with the recall of goods which may cause injury, loss or damage to any person.  The procedure in regard to the recall of goods is laid down.  A supplier may voluntarily recall any goods to avoid any prosecution under the Act.

Part XI – This part deals with distant selling between suppliers and consumers.  Distant selling between Member States of the Caribbean Community needs a Protocol/Agreement to deal with matters relating to judicial and administrative redress, sanctions and assistance to the supplier or consumer that may arise in inter-country transactions.  Hence, it is recommended to have an E-Commerce Protocol or a Distant Selling Agreement as a pre-requisite for the implementation of this part.

Part XII – This part deals with miscellaneous matters.  It provides the Minister to make extensive Regulations to fill any gaps in the legislation.  It has a general penal clause to punish any contraventions of the Act.  It is recommended to include transitional and savings provisions , if the Member State is willing to adopt the draft Consumer Protection Act 2010.

The Bill is a comprehensive piece of legislation and deals with many matters not covered by existing national legislation relating to Consumer Protection in Member States of the Caribbean Community.  It therefore serves as a reference point to harmonise legislation relating to consumer protection under Articles 184 and 185 of the Revised Treaty of Chaguaramas. 

ACTION REQUIRED

THE MEETING is invited to -

(i)        note that the draft Model Consumer Protection Bill and the policy mandate has been approved by the Council for Trade and Economic Development and is now before it for discussion and consideration;

(ii)       also note the paper prepared by the Office of the General Counsel in support of the draft Model Bill;

(iii)     examine the provisions in the draft Model Bill; and

(iv)      recommend that the draft Model Bill be submitted to the Legal Affairs Committee for its approval.