Holiday Laws: Protection of vacationers

INTRODUCTION:

Chapter 2 of the Consumer Protection Act 2007 is designed to protect the consumers from misleading price indications.

Misleading Commercial Practices

• 42. General prohibition on misleading commercial practices.
• 43. Misleading: false, misleading or deceptive information.
• 44. Misleading: competitor or product confusion in marketing or advertising.
• 45. Misleading: non-compliance with commitment under code of practice by which trader is bound.
• 46. Misleading: withholding, omitting or concealing material information.
• 47. Offence: misleading commercial practices.
• 48. Prohibition on surcharges where one method of payment chosen in preference to another.
• 49. Requirement that surcharge (where otherwise permissible) be stated as part of price.
• 50. Consumer information regulations.
• 51. Offences: contravening consumer information regulations.

The first attempt by the Government to provide such protection to the Consumers was in the form of Section 11 of the Trade Descriptions Act 1968, which applied to only goods and which was easily circumvented. The next attempt was the Price Marking (Bargain Offers) Order 1979 which attracted universal criticism on the grounds that it was incomprehensible. The 2007 Act is not only more comprehensible but also more comprehensive in that it covers services and facilities as well as goods.

It should be noted that Regulation 5 of the Package Travel Regulations 1992 lists the price of the packages as one of the things to be stated legibly, comprehensively and accurately in any brochure.

The kind of practices which were outlawed by the design of the Consumer Protection Act 1987 include, for instance, printing just the basic price of a holiday in a price panel and omitting the airport supplements, the insurance premiums, the airport taxes, etcetera, so that the client is misled into believing that the price is much less than it actually is. By the time he realizes this, it may be too late to turn back.

The Consumer Protection Act 2007 came into effect in Ireland on 1 May 2007. The Act provided for the establishment of the National Consumer Agency. Under the Competition and Consumer Protection Act 2014 the National Consumer Agency and the Competition Authority were replaced by the Competition and Consumer Protection Commission. The Commission took over the functions of the two agencies.

The 2007 Act also put the EU Directive on unfair commercial practices into national law and it made various changes to our consumer laws. It also repealed certain older consumer laws, some of which dated from the 19th century.

The Consumer Protection Act 2007 is quite complex and includes some detailed definitions. The following is a summary of its main provisions:

Competition and Consumer Protection Commission

The Competition and Consumer Protection Commission (CCPC) was established on 31 October 2014 and took over the functions and powers of the National Consumer Agency. It has a general function of promoting consumer welfare and is responsible for investigating, enforcing and encouraging compliance with consumer law. It has a website for consumers.

There is more information on what the Commission does on its website.

Consumer protection

Unfair commercial practices

The EU Unfair Commercial Practices Directive (Directive 2005/28/EC of 11 May 2005) deals with the unfair business-to-consumer commercial practices, (it does not apply to dealings between businesses). The Consumer Protection Act 2007 provides for its implementation in Ireland.

The Act provides that a range of unfair, misleading and aggressive trading practices are banned if they would be likely to cause appreciable impairment of the average consumer's ability to make an informed choice in relation to the product concerned and would cause the average consumer to make a decision about a transaction that they would not otherwise make. Practices are banned, therefore, if they meet two conditions:

1. They are unfair, misleading or aggressive
2. They are likely to distort your consumer's choice

The Act also provides that certain practices are always banned - these do not have to meet the second condition.

Price display regulations

The Consumer Protection Act 2007 gives the Minister the power to make Regulations requiring that the prices of certain products be displayed in a specific manner. For example, they could provide that prices of certain products must be displayed inclusive of charges, fees and taxes.

Price controls

The Prices Acts 1958-1972 gave the Minister for Jobs, Enterprise and Innovation a range of powers to set maximum prices. The Act repeals all of these powers except the power to control prices in emergency situations. It provides that the power to control prices in emergency situations must be exercised by the government and not the Minister.

Pyramid selling

The Pyramid Selling Act 1980 was repealed by the Consumer Protection Act 2007 and replaced by new provisions. These provisions ban participation in pyramid schemes and inducing others to participate. They also ban the establishment, operation or promotion of these schemes and increase the penalties for breaking the law. The new penalties for offences relating to pyramid schemes involve a fine of up to €150,000 and a prison term of up to five years.

Codes of practice

The Consumer Protection Act 2007 provides for the recognition of codes of practice drawn up by traders or groups of traders and for the CCPC to approve such codes. It also provides that the CCPC may issue guidelines to traders about consumer protection and welfare, commercial practices, quality assurance schemes and codes of practice.

Casual trading licenses

The Act gives power to the Minister to introduce statutory guidelines for local authorities in regard to the issuing of casual trading licences. Non-statutory guidelines were issued to local authorities in July 2005 and again in July 2006 with a view to their being implemented on a voluntary basis. If this does not prove satisfactory, the Minister can introduce statutory guidelines.

The Objective of the Consumer Protection Act 1986 is as follows:

The Consumer Protection Act, 1986 was enacted to provide for better protection of the interest of the consumers and for the purpose to make provisions for the establishment of Consumer Councils and other authorities in the settlement of consumer disputes and for matters connected therewith. It seeks, inter-alia, to promote and to protect the rights of consumers such as protection against marketing of goods which are hazardous to life and property, the right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices, the right to be assured, wherever possible, access to variety of goods at competitive prices, the right to be heard and to be assured that the interest of consumers will receive due consideration at appropriate forums, the right to seek redressal against unfair trade practices or unscrupulous exploitation of consumers and right to consumer education. The object is also to provide speedy and simple redressal to consumer disputes-quasi judicial machinery is sought to be set up at District, State and Central Levels. These quasi-judicial bodies are to observe principles of natural justice and have been empowered to give relief of specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non-compliance of orders given by quasi-judicial bodies have also been provided.

3.1.0 PREAMBLE OF CONSUMER PROTECTION ACT

It is not necessary that every act passed by legislature must have the preamble. However, when the preamble is added to an Act, it is a part of Act itself. The preamble of consumer protection Act, 1986 reads a follows: “An act to provide for better protection of the interest of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumer’s disputes and for matters connected therewith.” From above, it would be seen that the consumer protection Act, 1986 seeks to provide for better protection of the interest of consumers and for that purpose to make provision for establishment of consumer councils and other authorities for the settlement of consumers’ disputes.

ENFORCEMENT:

The enforcement of the Consumer Protection Act is by the means of criminal law. The responsibility is placed upon weights and measures authorities (usually known as Trading Standards Departments). If they bring a case which is tried in a Magistrates’ Court, the maximum fine is 5,000 Pounds, but in Crown Court, an unlimited fine can be imposed for each offence.

Section 41(2) of the Consumer Protection Act 1987, expressly states that Part 3 does not confer any right of action in civil proceedings. However, this would not prevent a consumer from claiming compensation in the criminal proceedings by virtue of the Powers of Criminal Courts Act 1973. Nor would it prevent a consumer claiming simple breach of contract in an appropriate case.

REQUIREMENTS OF THE OFFENCE:

Section 20 of the Consumer Protection Act 1987 creates two offences. The first is giving a misleading price indication (Section 20 (1)) and the second is giving a price indication which subsequently becomes misleading (Section 20 (2)).

For a prosecution to succeed under Section 20 (1), it has to be shown that:

• A person in the course of business of his
• Has given a misleading indication
• About the price or
• The method of calculating the price
• Of goods, services, accommodation or facilities
• To a consumer

For a prosecution to succeed under Section 20 (2), it has to be shown that:

• A person in the course of business of his
• Has given an indication of the price or its method of calculation which has subsequently become misleading; and
• Some consumers might still be relying upon the original indication; and
• He has not taken reasonable steps to correct the indication.

By: Navin Kumar Jaggi & Harshraj Shakdupia