Both Houses of Parliament recently passed The Consumer Protection Bill of 2004. The Senate proposed twenty-five amendments to the Bill which is now in the lower House for final consideration. The main object of this timely Bill is the promotion and protection of consumer rights and interests. The Bill also establishes the Consumer Affairs Commission to carry out this mandate.
The Commission will have the power to investigate complaints made by consumers or proceed on its own initiative to enforce the provisions of the Bill which will apply to every person in trade or business whether as purchasers or vendors. The Commission will also have the power to resolve disagreements between consumers and providers of goods and services.
A review of the Bill discloses some of the following concerns:
- The independence of the Commission will be integral to its operation. The Bill should therefore give the Commission autonomy in terms of its investigative and enforcement powers. In the United States consumer protection is governed by the Consumer Product Safety Commission, an independent federal regulatory agency which has extensive responsibilities similar in some respects to our Commission. However, the CPSC has independence in terms of implementing and enforcing its policy. One reason for this level of independence is that the US Government has correctly realized that it too is involved in the production of goods and services, as is the Jamaican government. Unfortunately, the Bill as drafted only gives the Commission power to investigate but thereafter report findings to the Minister. The Commission, like the CPSC should be given greater autonomy and independence with the ability to enforce its investigations and take to Court any offending provider of goods and services , including government agencies.
- The Bill purports to establish a parallel jurisdiction similar to that which currently exists in relation to professional bodies. Lawyers, doctors, engineers and architects are already accountable to the disciplinary standards of these bodies and are fully regulated and subject to disciplinary control by their respective associations. This could lead to duplication, additional cost and confusion as the consumer in commencing proceedings with the professional body may also be taking complaints to the Commission. It is perhaps best for the professional associations (which are better able to judge the conduct of those professionals against the standards of that profession) to deal with complaints.
- The Bill provides that warranties given by local as well as overseas manufacturers will be extended to local consumers of goods and services. This provision appears to be too wide and will place an onerous and unreasonable obligation on businesspersons to replace parts or goods manufactured in other countries where, in many instances, the overseas warranties are stated to be invalid outside the country of manufacture and local businessmen have no recourse to their overseas suppliers.
- The clauses of the Bill which deal with misleading and deceptive conduct, false misrepresentations and unfair practices mirror and apparently duplicate the provisions of the Fair Competition Act and duplicates the jurisdiction and power of the Fair Trading Commission. Again, this may lead to duplication of efforts, waste of resources, confusion and time wasting.
- The Bill provides that the Commission shall not be precluded from conducting an investigation in respect of any matter by reason only that it is open to the complainant to apply to the Court for redress under any other enactment. Once again the difficulty with this section is that the situation may arise where the Commission and some other forum (eg: – the courts, a disciplinary body, the Fair Trading Commission etc) come to differing determinations on the same case. This will only serve to confuse and result in the lack of confidence either in the Commission or in the judicial process. Perhaps it should be useful for the Commission to suspend investigations pending the outcome of a judicial or quasi-judicial body or join those proceedings as an interested party.
- Surprisingly, the Bill appears to require a market vendor to produce receipts for the sale of produce, yes, even ground provisions, failing which a penalty of a fine of up $50,000.00 and/or imprisonment for 30 days may be imposed! Consumer protection is important and definitely needs to be strengthened, but does this Bill go too far?
However, the Bill is welcome, but one would like to see an effective, independent and strong Commission. It is important that consumers, businesses, professionals and various other stakeholders take the time to review the Bill so as to make informed comments to the Ministry of Commerce Science and Technology. The full text of the Bill is available on the website of that Ministry. (www.mct.gov.jm).
Donovan C. Walker is an Attorney-at-Law and Partner in the firm DunnCox.
He can be contacted at Donovan.Walker@dunncox.com.