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.
