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http://www.entemp.ie/press/2006/20060824.htm
New protections for consumers and overhaul of structures marks biggest reform in 30 years
Micheál Martin, TD, Minister for Enterprise, Trade & Employment
Thursday 24 August 2006
Enterprise Minister Micheál Martin, today announced details of major new consumer protection legislation which will extend new protections for consumers and overhaul structures in what is the biggest reform of the area in 30 years. It will, he said, help to ensure that Ireland will have one of the strongest and most modern consumer protections in the world.
The new Bill, called the Consumer Protection (National Consumer Agency) Bill, will include bans and tough sanctions for 31 anti-consumer activities including pyramid selling, prize draw scams and persistent cold-calling of consumers. It will also formally establish the new National Consumer Agency which will have the funding and powers to act forcefully on behalf of consumers.
The Minister explained that this is the first major piece of new consumer legislation in Ireland in almost 30 years. It will replace legislation which is long since outdated – including two acts which have been in place for over 100 years. A total of ten older Acts are being repealed and modernised by the new Bill.
Making the announcement, Minister Martin said: “The Consumer Agency will be a powerful advocate on behalf of consumers. It will have the resources to contribute on all issues that are of real concern to consumers. It will, for example, be empowered to work closely with regulators in the energy, telecommunications and aviation sectors and to offer an informed consumer perspective on availability, price and choice. The Agency will also take a leading role in consumer information, research, education and awareness.”
The Minister emphasised that the Bill provides the agency with real teeth to protect consumers from unscrupulous traders and will prohibit a wide range of unfair or misleading trade practices.
While the legislation contains a general prohibition on sales tactics that might be considered unfair, aggressive or misleading, it also lists a total of 31 specific practices which will be forbidden in all circumstances (list attached).
Among the key areas of consumer concern addressed in the legislation are:
“I am also looking at the possibility of giving powers to the Agency to seek closure orders against traders who persistently and seriously flout the law. While I favour such a power, its inclusion in the new legislation will depend on legal advice”, the Minister said.
The Minister confirmed that the bill will be published in the Autumn. The Minister also published a detailed analysis of the regulatory impact of the new legislation and invited business and consumers alike to submit their views.
In conclusion, the Minister said: This is the first and most crucial phase of what is a root & branch review of Ireland’s consumer laws. Phase 2 will begin in the Autumn and will include a review of the law governing consumer contracts including in particular, the Sale of Goods and Supply of Services Act, 1980. It will also involve a review of all secondary legislation including regulations requiring the display of prices by retailers and other traders.
“As part of this process, I hope to publish a public consultation document in the next few weeks in regard to regulations requiring traders to display prices on all goods offered for sale to the public. These rules have been in force for some time now and it is appropriate that we look at how they are operating and amend them if there are problems,” the Minister said.
ENDS
Notes For Editors
The Consumer Protection (National Consumer Agency) Bill, 2006 has two principal parts:
Part I - The National Consumer Agency
The establishment of a new National Consumer Agency was the core recommendation of the Consumer Strategy Group as approved by Government its meeting on 3rd May 2005.
The new Agency, will incorporate the existing Office of the Director of Consumer Affairs but will have specific additional powers and functions in areas of consumer advocacy, research, education and awareness, information and enforcement. These additional functions were specifically identified by the CSG as being vital to enable the NCA to deliver the integrated set of services that the modern consumer needs.
The General Scheme of the Bill provides that the NCA shall have the right to advise the Government and Ministers on consumer protection matters and also to keep existing consumer protection laws under review and to submit proposals in relation to those laws as it sees fit.
The Bill further provides that the NCA shall enter into formal co-operation agreements with the various sectoral regulators, including the energy and telecoms regulators. These agreements will allow for consultation between the various regulators and the NCA in relation to the determination of any issue impacting on consumer welfare.
The Bill provides the NCA with a number of enforcement options.
The Interim Board has been asked to prepare a detailed estimate of the staffing, resources and budget requirements of a fully operational and statutory based NCA. In the light of this estimate, discussions will take place with the Minister for Finance and other Government Ministers in relation to additional resources for the statutory NCA in 2007 as part of the estimates process.
Part II – The Unfair Commercial Practices Directive (UCPD)
The Directive was published in June 2003 and political agreement on it was reached in May 2004 during the Irish Presidency of the EU. The Directive came into force in June 2005 and must be transposed into national law by June 2007. As the Directive is a maximum harmonisation measure, member states are precluded from extending or exceeding its provisions. The consumer protection provisions of the Directive have four main elements:
False Claims about Goods or Services
It is a misleading commercial practice under the Directive to give information that is false or in any way deceptive about a good or service where this affects consumer decisions. Though the matter has not been tested in the courts, it is generally accepted that false or misleading claims about property other than rental accommodation are not covered by existing Irish legislation. The new legislation will cover false or deceptive claims about house or other property. It will also provide that misleading omissions as well as actions can be unfair commercial practices where these affect consumer decisions – again this is a provision not expressly found in current legislation.
‘Bait’ Advertising
The UCPD blacklist provides that the following marketing tactics are unfair commercial practices in all circumstances:
Prize Draw Scams
The UCPD blacklist provides that the following prize promotion practices are unfair commercial practices in all circumstances:
Pyramid Schemes
The UCPD blacklist provides that it is an unfair commercial practice in all circumstances to establish, operate or promote a pyramid scheme in which the opportunity to receive compensation is derived primarily from the introduction of other participants into the scheme rather than from the sale of goods or services. The Directive’s definition of pyramid schemes focuses on the key feature of these schemes and this should make it more effective than the Pyramid Selling Act which required schemes to meet four separate conditions and has proved easy to evade and difficult to enforce. The new legislation also contains a number of other provisions intended to facilitate more effective action against the ‘gifting’, ‘Liberty’, and ‘speed ball’ pyramid-type schemes that have emerged in recent years. It provides for the sharing of information relating to offences between the National Consumer Agency, an Garda Síochána and other agencies and also contains a proposal for immunity for individuals who provide information on breaches of consumer legislation, including the legislation relating to pyramid schemes. The Bill further provides that offences relating to pyramid schemes will carry a maximum penalty of five years’ imprisonment, thus making them arrestable offences that are subject to arrest without a warrant.
The full list of aggressive and misleading commercial practices that will be prohibited in all circumstances under the Bill are as follows:
Misleading commercial practices
New protections for consumers and overhaul of structures marks biggest reform in 30 years
Micheál Martin, TD, Minister for Enterprise, Trade & Employment
Thursday 24 August 2006
Enterprise Minister Micheál Martin, today announced details of major new consumer protection legislation which will extend new protections for consumers and overhaul structures in what is the biggest reform of the area in 30 years. It will, he said, help to ensure that Ireland will have one of the strongest and most modern consumer protections in the world.
The new Bill, called the Consumer Protection (National Consumer Agency) Bill, will include bans and tough sanctions for 31 anti-consumer activities including pyramid selling, prize draw scams and persistent cold-calling of consumers. It will also formally establish the new National Consumer Agency which will have the funding and powers to act forcefully on behalf of consumers.
The Minister explained that this is the first major piece of new consumer legislation in Ireland in almost 30 years. It will replace legislation which is long since outdated – including two acts which have been in place for over 100 years. A total of ten older Acts are being repealed and modernised by the new Bill.
Making the announcement, Minister Martin said: “The Consumer Agency will be a powerful advocate on behalf of consumers. It will have the resources to contribute on all issues that are of real concern to consumers. It will, for example, be empowered to work closely with regulators in the energy, telecommunications and aviation sectors and to offer an informed consumer perspective on availability, price and choice. The Agency will also take a leading role in consumer information, research, education and awareness.”
The Minister emphasised that the Bill provides the agency with real teeth to protect consumers from unscrupulous traders and will prohibit a wide range of unfair or misleading trade practices.
While the legislation contains a general prohibition on sales tactics that might be considered unfair, aggressive or misleading, it also lists a total of 31 specific practices which will be forbidden in all circumstances (list attached).
Among the key areas of consumer concern addressed in the legislation are:
- Making false claims about a product or service
- “Baiting” customers by advertising for sale products which are not available
- Pyramid selling
- Prize draw scams
- Certain types of advertising directed at children
- Persistent and unwanted cold calling of consumers
“I am also looking at the possibility of giving powers to the Agency to seek closure orders against traders who persistently and seriously flout the law. While I favour such a power, its inclusion in the new legislation will depend on legal advice”, the Minister said.
The Minister confirmed that the bill will be published in the Autumn. The Minister also published a detailed analysis of the regulatory impact of the new legislation and invited business and consumers alike to submit their views.
In conclusion, the Minister said: This is the first and most crucial phase of what is a root & branch review of Ireland’s consumer laws. Phase 2 will begin in the Autumn and will include a review of the law governing consumer contracts including in particular, the Sale of Goods and Supply of Services Act, 1980. It will also involve a review of all secondary legislation including regulations requiring the display of prices by retailers and other traders.
“As part of this process, I hope to publish a public consultation document in the next few weeks in regard to regulations requiring traders to display prices on all goods offered for sale to the public. These rules have been in force for some time now and it is appropriate that we look at how they are operating and amend them if there are problems,” the Minister said.
ENDS
Notes For Editors
The Consumer Protection (National Consumer Agency) Bill, 2006 has two principal parts:
Part I - The National Consumer Agency
The establishment of a new National Consumer Agency was the core recommendation of the Consumer Strategy Group as approved by Government its meeting on 3rd May 2005.
The new Agency, will incorporate the existing Office of the Director of Consumer Affairs but will have specific additional powers and functions in areas of consumer advocacy, research, education and awareness, information and enforcement. These additional functions were specifically identified by the CSG as being vital to enable the NCA to deliver the integrated set of services that the modern consumer needs.
The General Scheme of the Bill provides that the NCA shall have the right to advise the Government and Ministers on consumer protection matters and also to keep existing consumer protection laws under review and to submit proposals in relation to those laws as it sees fit.
The Bill further provides that the NCA shall enter into formal co-operation agreements with the various sectoral regulators, including the energy and telecoms regulators. These agreements will allow for consultation between the various regulators and the NCA in relation to the determination of any issue impacting on consumer welfare.
The Bill provides the NCA with a number of enforcement options.
- The NCA will have the option of accepting an undertaking from a trader who is engaging in conduct in breach of consumer law.
- Where the NCA believes a trader may have committed an offence, it will have the option of issuing a fixed penalty notice to the trader. If the trader accepts the notice by paying the penalty stipulated therein, a prosecution will not be pursued.
- If the trader does not pay the penalty within the specified time, the NCA may initiate court proceedings in the normal way.
- In the case of summary convictions, the Bill proposes a maximum fine of €3,000 or 6 months imprisonment or both for a first offence and a maximum fine of €5,000 or 12 months imprisonment or both in the case of a second or subsequent offence.
- In the case of a conviction on indictment, the Bill proposes a maximum fine of €60,000 or 18 months imprisonment or both for a first offence and a maximum fine of €100,000 or 24 months imprisonment or both for a second or subsequent offences.
- The Bill provides that where a trader is convicted of an offence, the Court may instead of, or in addition to, dealing with the trader in any other way make a compensation order requiring the trader to pay compensation to any consumer who has suffered any loss resulting from that offence.
- The Bill also entitles the NCA to periodically publish lists of the names and addresses of persons convicted of offences for breaches of consumer protection law.
- Higher penalties are proposed in respect of offences under the pyramid selling provisions (see below).
The Interim Board has been asked to prepare a detailed estimate of the staffing, resources and budget requirements of a fully operational and statutory based NCA. In the light of this estimate, discussions will take place with the Minister for Finance and other Government Ministers in relation to additional resources for the statutory NCA in 2007 as part of the estimates process.
Part II – The Unfair Commercial Practices Directive (UCPD)
The Directive was published in June 2003 and political agreement on it was reached in May 2004 during the Irish Presidency of the EU. The Directive came into force in June 2005 and must be transposed into national law by June 2007. As the Directive is a maximum harmonisation measure, member states are precluded from extending or exceeding its provisions. The consumer protection provisions of the Directive have four main elements:
- a general prohibition of unfair commercial practices,
- a specific prohibition of misleading commercial practices,
- a specific prohibition of aggressive commercial practices,
- a ‘blacklist’ of twenty three misleading commercial practices and eight aggressive commercial practices that are unfair in all circumstances.
False Claims about Goods or Services
It is a misleading commercial practice under the Directive to give information that is false or in any way deceptive about a good or service where this affects consumer decisions. Though the matter has not been tested in the courts, it is generally accepted that false or misleading claims about property other than rental accommodation are not covered by existing Irish legislation. The new legislation will cover false or deceptive claims about house or other property. It will also provide that misleading omissions as well as actions can be unfair commercial practices where these affect consumer decisions – again this is a provision not expressly found in current legislation.
‘Bait’ Advertising
The UCPD blacklist provides that the following marketing tactics are unfair commercial practices in all circumstances:
- Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product, and the price offered (bait advertising).
- Making an invitation to purchase products at a specified price and then:
- refusing to show the advertised item to consumers; or
- demonstrating a defective sample of it,
Prize Draw Scams
The UCPD blacklist provides that the following prize promotion practices are unfair commercial practices in all circumstances:
- Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.
- Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
- there is no prize or other equivalent benefit; or
- taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost.
Pyramid Schemes
The UCPD blacklist provides that it is an unfair commercial practice in all circumstances to establish, operate or promote a pyramid scheme in which the opportunity to receive compensation is derived primarily from the introduction of other participants into the scheme rather than from the sale of goods or services. The Directive’s definition of pyramid schemes focuses on the key feature of these schemes and this should make it more effective than the Pyramid Selling Act which required schemes to meet four separate conditions and has proved easy to evade and difficult to enforce. The new legislation also contains a number of other provisions intended to facilitate more effective action against the ‘gifting’, ‘Liberty’, and ‘speed ball’ pyramid-type schemes that have emerged in recent years. It provides for the sharing of information relating to offences between the National Consumer Agency, an Garda Síochána and other agencies and also contains a proposal for immunity for individuals who provide information on breaches of consumer legislation, including the legislation relating to pyramid schemes. The Bill further provides that offences relating to pyramid schemes will carry a maximum penalty of five years’ imprisonment, thus making them arrestable offences that are subject to arrest without a warrant.
The full list of aggressive and misleading commercial practices that will be prohibited in all circumstances under the Bill are as follows:
Misleading commercial practices
- Claiming to be a signatory to a code of conduct when the trader is not.
- Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.
- Claiming that a code of conduct has an endorsement from a public or other body which it does not have
- Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation.
- Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
- Making an invitation to purchase products at a specified price and then:
- refusing to show the advertised item to consumers; or
- refusing to take orders for it or deliver it within a reasonable time; or
- demonstrating a defective sample of it,
- Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice.
- Undertaking to provide after-sales service to consumers with whom the trader has communicated prior to a transaction in a language which is not an official language of the Member State where the trader is located and then making such service available only in another language without clearly disclosing this to the consumer before the consumer is committed to the transaction.
- Stating or otherwise creating the impression that a product can legally be sold when it cannot.
- Presenting rights given to consumers in law as a distinctive feature of the trader's offer.
- Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial).
- Making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product.
- Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not.
- Establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products.
- Claiming that the trader is about to cease trading or move premises when he is not.
- Claiming that products are able to facilitate winning in games of chance.
- Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.
- Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions.
- Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.
- Describing a product as "gratis", "free", "without charge" or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.
- Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.
- Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer.
- Creating the false impression that after-sales service in relation to a product is available in a Member State other than the one in which the product is sold.
- Creating the impression that the consumer cannot leave the premises until a contract is formed.
- Conducting personal visits to the consumer's home ignoring the consumer's request to leave or not to return except in circumstances and to the extent justified, under national law, to enforce a contractual obligation.
- Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation.
- Requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reasonably be considered relevant as to whether the claim was valid, or failing systematically to respond to pertinent correspondence, in order to dissuade a consumer from exercising his contractual rights.
- Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them.
- Demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but not solicited by the consumer except where the product is a substitute supplied in conformity with Article 7(3) of Directive 97/7/EC (inertia selling).
- Explicitly informing a consumer that if he does not buy the product or service, the trader's job or livelihood will be in jeopardy.
- Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
- there is no prize or other equivalent benefit, or
- taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost.