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UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT UNCTAD MANUAL ON CONSUMER PROTECTION Edition 2016 Advance copy i Manual on Consumer Protection NOTE The designations employed and the presentation of the material do not imply the expression of any opinion whatsoever on the part of the United Nations secretariat concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. This is an unedited publication. Material in this publication may be freely quoted or reprinted, but acknowledgement is requested, together with a reference of the document number. A copy of the publication containing the quotation or reprint should be sent to the UNCTAD secretariat. This publication is an advance copy of the Manual on Consumer Protection. Please send your comments to: [email protected] UNITED NATIONS PUBLICATION UNCTAD/WEB/DITC/CLP/2016/1 Copyright © United Nations, 2016 All rights reserved. Printed in Kenya Manual on Consumer Protection ii ACKNOWLEDGEMENTS The Manual on Consumer Protection was revised in 2016 by Robin Simpson, lead consultant, and a team comprising Marisa Henderson, Graham Mott, Maria Bovey and Arnau Izaguerri. The work was completed under the overall supervision of Guillermo Valles, Director of the Division on International Trade in Goods and Services, and Commodities. The manual benefited from major substantive input by: Celine Awuor, consultant specialist in consumer protection in financial services; Thierry Bourgoignie, Groupe de recherche en droit International et comparé de la consommation, Université du Québec à Montréal; Liz Coll, specialist consultant in digital consumer policy; Ms Ha Dinh; Mr Julian Edwards, consumer policy consultant; Alan Etherington, consultant, water and sanitation; Christopher Hodges, University of Oxford; Sadie Homer, specialist, consumers and international standards; Claudia Lima Marques, Federal University of Rio Grande do Sul; Jeremy Malcolm, Electronic Frontier Foundation; Robert N. Mayer, University of Utah; Ogochukwu Monye, University of Benin, Nigeria; Judit Pump, specialist in environmental law; Iain Ramsay, University of Kent; Christine Riefa, University of Brunel; Elena Salazar de Llaguno, food consultant and specialist in food policy; Antonino Serra Cambeceres, specialist, consumer protection; Jami Solli; Stephen Thomas, University of Greenwich; Frank Trentmann; Toni Williams, University of Kent; Elena Wolf, consultant on consumer protection; Ying Yu, University of Oxford; and Aurélie Zoude-Le Berre, advisor in French National Assembly, specialist in competition policy and practice. Comments on a draft version of the manual were provided by Nicole Nespoulous, Deon Woods-Bell, and Cécile Barayre. The cover was prepared by Nadège Hadjemian and Neema Toyb. iii Manual on Consumer Protection Contents NOTE ii ACKNOWLEDGEMENTS iii LIST OF ABBREVIATIONS ix PART I: A CONSUMER PROTECTION SYSTEM 1 Chapter 1 Consumer Protection - An Overview 2 1.1 The rationale for consumer protection 2 1.2 Who is the consumer and what is consumer interest? 6 1.3 Who is responsible for consumer protection? 7 1.4 A framework for consumer protection 8 1.5 Conclusion 10 Chapter 2 The United Nations Guidelines for Consumer Protection 11 2.1. International instruments and consumer protection 11 2.2 The United Nations Guidelines for Consumer Protection 11 2.2.1 Objectives, scope of application and general principles 12 2.2.2 Principles for good business practices 13 2.2.3 Guidelines 13 2.2.3 International cooperation 16 2.2.4 International institutional machinery 16 2.3 Conclusion 17 Chapter 3 Consumer Law 19 3.1 Consumer law in the United Nations Guidelines for Consumer Protection 19 3.2 Constitutional provisions on consumer protection 19 3.3 Framework consumer protection laws 20 3.4 Interface between consumer laws and other laws 23 3.4.1 Sectoral laws 23 3.4.2 Professional service legislation 23 3.4.3 Intellectual property 23 3.4.4 International trade law 24 3.5 Conclusion 25 Chapter 4 Consumer Protection Agencies 26 4.1 Consumer protection agencies in the United Nations Guidelines for Consumer Protection 26 4.2 Functions of consumer protection agencies 26 4.3 Organizational models for consumer protection agencies 27 4.3.1 Examples of Government agencies within ministries 27 4.3.2 Consultation mechanisms 28 4.3.3 Operational autonomy 29 4.3.4 The link with competition 29 4.3.5 Non-statutory public bodies 31 4.4 The changing scope of consumer protection 31 4.5 Conclusion 32 Manual on Consumer Protection iv Chapter 5 Consumer Associations 33 5.1 Consumer associations in the United Nations Guidelines for Consumer Protection 33 5.2 Consumer associations in the modern economy 33 5.3 The functions of consumer associations 35 5.4 Consumer associations’ independence 36 5.5 Consumer associations – are they representative? 36 5.6 Conclusion 38 Chapter 6 Business conduct 39 6.1 Business conduct in the United Nations Guidelines for Consumer Protection 39 6.2 Corporate social responsibility 41 6.2.1 European Union definitions of corporate social responsibility 41 6.2.2 ISO 26000 Guidance on corporate social responsibility 41 6.2.3 OECD Guidelines for multi-national enterprises 42 6.2.4 Is corporate social responsibility making progress? 43 6.2.5 Is it possible to do well by doing good? 44 6.3 Self-regulation 44 6.3.1 Cross-border codes 46 6.3.2 Criteria for self-regulation 46 6.4 Does collaboration work? 48 6.5 Conclusion 48 Chapter 7 Competition Law and the Consumer interest 50 7.1 Competition in the United Nations Guidelines for Consumer Protection 50 7.2 Nature and characteristics of competition law and policy 50 7.3 Concepts of competition law 51 7.3.1 Abuse of dominance 52 7.3.2 Cartels and collusive behaviour 53 7.3.3 Mergers and acquisitions 55 7.4 Institutional architecture for competition 55 7.5 A challenge for competition policy coherence: consumer resistance to switching 57 7.6 Conclusion 58 Chapter 8 International Cooperation 59 8.1 International cooperation in the United Nations Guidelines for Consumer Protection 59 8.2 Applicable law and jurisdiction 60 8.3 Practical international cooperation 62 8.4 International institutional machinery 63 8.5 Conclusion 64 PART II: CONSUMER PROTECTION IN THE MARKETPLACE 65 Chapter 9 Product Safety and Liability 66 9.1 Product safety in the United Nations Guidelines for Consumer Protection 67 9.2 Product Safety Laws 67 9.2.1 The rationale for product safety laws 67 9.2.2 Components of a comprehensive product safety policy 67 v Manual on Consumer Protection 9.3 Product Liability 70 9.3.1 Contractual liability 70 9.3.2 Tortious liability 71 9.3.3 Strict liability 71 9.3.4 Rationale for strict liability 71 9.3.5 What is a defect? 72 9.3.6 Standards for determining defectiveness 73 9.3.7 Defences against product liability 74 9.4 Services as dangerous products 76 9.5 Product safety in international law and policy 76 9.6 Second hand goods 77 9.7 Conclusion 78 Chapter 10 Consumer Information and Education 79 10.1 Concepts of consumer information and education 79 10.2 Consumer information and education in the United Nations Guidelines for Consumer Protection 79 10.3 The transfer of risk 80 10.4 Consumer information 80 10.5 Critical issues with respect to labelling 82 10.5.1 Mandatory labelling 82 10.5.2 Voluntary labelling 82 10.5.3 Product information criteria 83 10.6 Critical issues with respect to advertising 84 10.7 Implementation of consumer education 86 10.8 Conclusion 89 Chapter 11 Consumer Dispute Resolution and Redress 91 11.1 Consumer dispute resolution and redress in the United Nations Guidelines for Consumer Protection 91 11.2 The need for consumer dispute resolution and redress 91 11.3 Pathways for delivering consumer redress 92 11.3.1 Courts 92 11.3.2 Collective redress 92 11.3.3 Public regulatory and enforcement action 93 11.3.4 Alternative dispute resolution 93 11.3.5 Ombudsmen 94 11.3.6 Business customer care and complaint functions 95 11.3.7 Online dispute resolution 95 11.4 Criteria for assessing consumer redress systems 96 11.5 Conclusion 97 Chapter 12 Electronic Commerce 98 12.1 Electronic commerce in the United Nations Guidelines on Consumer Protection 98 12.2 The scope and extent of e-commerce 98 12.3 Consumer trust in the digital market 102 12.4 Guidelines from the Organization for Economic Cooperation and Development 103 12.4.1 Applicable law for cross-border redress 103 12.4.2 Identification of the provider 103 12.4.3 Authentication of the consumer 104 12.4.4 Privacy issues 104 Manual on Consumer Protection vi 12.4.5 Security issues 104 12.4.6 Electronic contracting 105 12.4.7 Other issues 105 12.5 Other international guidelines for the regulation of e-commerce 105 12.5.1 The United Nations Commission on International Trade Law 106 12.5.2 UNCTAD’s e-commerce and law reform project 106 12.6 Conclusion 106 Chapter 13 Privacy and Data Protection 109 13.1 Privacy in the United Nations Guidelines for Consumer Protection 109 13.2 Is privacy a right? 109 13.3 Understanding the data dimension from a consumer perspective 110 13.4 Regulating the digital age 111 13.5 International regulation 112 13.6 Can technology respond to the challenges that technology creates? 114 13.7 Conclusion 117 PART III: CONSUMER PROTECTION AND BASIC GOODS AND SERVICES 118 Chapter 14 Financial Services 119 14.1 Financial services in the United Nations Guidelines for Consumer Protection 119 14.2 Function and forms of consumer credit 120 14.2.1 The poor pay more 122 14.2.2 Common forms
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