AFRICA DIALOGUE CONSUMER PROTECTION CONFERENCEAFRICA DIALOGUE CONSUMER PROTECTION CONFERENCEArusha TanzaniaArusha Tanzania

July 12July 12thth – 14 – 14thth 2010 2010ByBy

Mr. Daniel AsherMr. Daniel AsherProgramme OfficerProgramme Officer

CUTS Africa Resource Centre, NairobiCUTS Africa Resource Centre, Nairobinairobi@cuts.org

www.cuts-international.orgwww.cuts-international.org

Consumer Protection Under Trade Descriptions Act Gazette Notice No.

1645 of 4th June, 1979

Honest Statements on Consumer Goods and Services !!

The Act Prohibit false statement on:

. good’s identity, quality, quantity, size and gauge;

composition;fitness for purpose

(strength, performance, behavior or accuracy);

testing by any person or results thereof; approval by any person or conformity with a type approved by any person;

Act Prohibit false statements on

.

• place & date of manufacture (production, processing , reconditioning);

• person by whom manufactured (or produced, processed ,reconditioned);

.

• Prohibiting false or misleading indications as to price

• Prohibiting false representation as to the supply of goods or services.

• Prohibiting the importation of goods bearing false indication of origin

• Prohibiting false or misleading statements as to services or accommodation

What is a False Trade Description?-

• It is an “untruth” about goods made in any way by word of mouth, by a notice, by a label, invoice, advert, etc. need not be deliberate.

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Making of an untrue statement is an offence irrespective of intention.

Kinds of untrue statement.

• Happen in a wide range of matters relating to the goods e.g.

• the way in which they are made ” handmade";

• the material of which they are made, e.g. "genuine leather" or "100% silk";

.

Kinds of untrue statement.

•about physical properties e.g. "rust-proof'; stainless steel…•about previous ownership e.g. "formerly the property of lord and and lady so and so", etc.

.

Kinds of untrue statement.

• about performance e.g. "guaranteed 16km/litre , puncher proof, desert warrior etc.

.

• Anything said about goods which are supplied or to be supplied can constitute an offence if untrue.

The Word “Goods” according to the Act

means anything normally sold by a trader or businessman e.g. food, domestic supplies, furnishings, clothing, vehicles with accessories and parts, plants and seeds, books, newspapers and periodicals, etc.

specific exclusion from the definition is "real property" i.e. permanent building.

The Act protect Consumers against false Statement on Good and

Services.

When does a false trade description apply to goods?

A “false trade description” can be applied to goods by word of mouth, label, notice or advertisement.

• An offence can be committed by what is called an “implied false trade Description”. E.g. the case where a customer asks for something specific and a shopkeeper supplies him with something else without telling the customer that it is not what he asked for. E.g. Penadol Extra instead of Neladol

cont• If a customer asks for stainless steel knives and is

supplied with nickel – plated ones without being told that they were not of stainless steel, the supplier would have committed an offence even though he uttered no words.

• If a trade’s description relating to a class of goods is false, then each of the goods in that class constitutes a separate offence.

• E.g., if one of a number of similar Ladies handbags displayed in a shop is labeled as being of “genuine leather” when in fact the handbags are made of simulated leather produced form plastic, each handbag in the shop would be a separate offence.

Protection against Misleading Statements on Services and Accommodation?

Section 6 of the Act relates to the provision of services and accommodation.

• It is an offence for any person to make a statement which he knows to be false or to recklessly make a statement which is false.

• The word "recklessly" as used in the Act means "regardless of whether it is true or false."

• This section mostly applies to holiday industry and concerns also those traders who are offering repair services, maintenance, hiring or leasing etc.

Consumer Protection under the Act

Two basic criminal offences !The Act creates two basic

criminal offences in relation to false trade descriptions.

1.Applying a false statement to goods.

2. Supplying or offering to supply goods to which a false trade description is applied.

The word “Supply” in the Act

• Mean more than “sale” It include letting, hiring, or other physical transfer of goods, which have been sold at some other time or by some other person.

Does every "false statement" constitute an offence?

.

Does every "false statement" constitute an offence?

• In order to constitute an offence a false trade description must be false to a "material degree."

• False to a material degree is a matter for the court to decide in each case, but generally speaking it means that the false statement must be of some significance.

• For example, a statement like “washes whiter than white" in OMO detergent advertisement is not false to a material degree.

• However, every statement which is false to a material degree does constitute an offence.

• For example in the case of ladies' handbags labeled as being made of "genuine Leather" when in fact they are made of simulated leather produced from plastic, each handbag would constitute a separate offence.

Examples

• As in the case of, goods, the statement about services must be "false to a material degree" for there to be an offence.

• examples: - charging for parts on repair or service of watches, or domestic appliances such as radios, T.Vs, etc. which has not been fitted.

• Statements about laundering or dry- cleaning in "24hrs" when it is impossible to do it in that time, and so on.

Consumers Protection against Misleading Prices.

• offence to give a false indication that goods are being offered at a price which is less than a recommended price or a previous price offered by the seller,

• It is an offence to give a false indication that goods are being offered at a price less than that at which they are actually being offered.

.

• The first type of offence refers to:

• Claimed discounts such as "1/=off" label,

• False claims of reduced price in sales such as "normal price sh. 75/= -our price sh. 50/=" when the goods were never sold at sh. 75/=.

Common Prices Offences(a) "Recommended price sh. 200/=, our price sh. 50/=, this statement would Constitute an offence if in fact sh. 200/= was never recommended by the manufacturer.

Common Price offences

• (b) "Prices slashed -now only sh. 100/=". This would be an offence if in fact the price has always been sh, 100/= and there is therefore no reduction;

• (c) “10% off on all goods." This would be an offence if the same prices were being previously charged in that shop.

• (d) A statement like "Reduced from sh.2, 700.00 to sh. 2,000.00" would• constitute an offence if, despite the fact that the price has been actually

reduced to sh. 2,000.00, the original price of sh.2,700.00 had not been in operation for a continuous period of not less than 28 days in the preceding six months.

.

• NB: Where prices of goods are claimed to have been reduced, Act assume that the original price was charged by the shopkeeper concerned unless the contrary is stated and, unless a lesser period is stated. the goods must have been on sale in that shop for a continuous period of not less than 28 days during the preceding six months.

• The second type of offence refers to situation where goods are marked with a particular price and a higher one is charged on sale.

As regards the origin of goods:

• It’s an offence to make, statements indicating that goods originated from a particular place when they did not. e.g., statements like "made in England", imported from Italy" etc. when the goods have been locally made is an offence.

Thank you