Almost all of us have probably heard of the monumental lawsuit against Volkswagen where they were booked for deceiving consumers about emission tests and how “eco-friendly” their vehicles are. Another example of such breach is “Visual Discovery”, a kind of popup ad delivery program which comes as part of the package when buying a Lenovo computer. The issue was that this program could access whatever information it wanted on the user’s system. There are incomputable examples of such cheatings and breaches around the world. In a changing world like this where every other right is recognized even the Consumer Protection Right should also be firmly and stiffly establish which ensures this right to every person across all nations.
Consumer protection is the method of safeguarding buyers and consumers of goods against unfair practices in the marketplace. Consumer protection measures are often established by the law in every country. Such laws are intended to prevent sellers and businesses from engaging in fraud or malpractices to gain an advantage over competitors or to mislead the consumers. Although every other country has various acts and commissions to prevent such malpractices, for example, institutions like Federal Trade Commission in the United States, Australian Competition and Consumer Commission in Australia, Consumer Protection Act, and Consumer Disputes Redressal Commission at the national and state level in India but still a firm body to ensure these rights at international level is also imperative. This is because now the businesses and their consumers are not limited to a specific country but are internationally buildout.
The United Nations have laid down the guidelines specifically known as “The United Nations Guidelines for Consumer Protection (UNGCP)” which are internationally implemented to prevent such malpractices with consumers. These are the valuable set of principles for setting out the effective legislation for consumer protection, setting up of enforcement institutions and redress systems, and for assisting the interested Member States in formulating and enforcing their domestic and regional laws.
History of UNGCP
The guidelines were adopted for the first time by the General Assembly in Resolution 39/248 on 16 April 1985. This was followed by a campaign by consumer unions in many countries with Consumers International (then known as the International Organisation of Consumer Unions) which acted as an interlocutor with the United Nations. With the emergence of the digital era, even this has experienced dramatic changes mainly because consumers have been facing a more expanding range of global challenges. To pace up with this changing landscape, new provisions were added in 1999 and then again in 2015 which included recommendations on good business practices, financial protection from malpractices, and e-commerce. However, the guidelines are only law provisions that are not legally binding on the member states, but they are a model code of conduct for every country to follow.
The United Nations was called upon in 1975 to prepare a ‘Model Code for Consumer Protection’ at its World Congress in Sydney. This led to the Economic and Social Council (ECOSOC) in 1977 directing the then Secretary-General to prepare a survey of national institutions and its legislations for consumer protection and in 1981, ECOSOC requested the Secretary-General to continue the consultations on consumer protection to elaborate the set of guidelines for consumer protection by specifically taking into account the needs of the developing countries.
The drafted guidelines were circulated to the governments for review in 1982, submitted to ECOSOC in 1983 which drew it from various sources including the United States Consumer Bill of Rights the Organisation for Economic Co-operation and Development (OECD), materials from consumer associations and national consumer protection agencies. In 1999, the UNGCP was expanded by ECOSOC to include a new section on sustainable consumption i.e. Section H of the 2015 version.
Development of International Guidelines for Consumer Law
In July 2012, the First Ad Hoc Expert Meeting on Consumer Protection was set up which decided that United Nations Conference on Trade and Development (UNCTAD) should begin a consultation process for the revision of the UNGCP. As a result of this consultation, the UNCTAD secretariat formed the implementation report on the UNGCP (1985 – 2013).
The Second Ad Hoc Expert Meeting on consumer protection was held in July 2013 discussed the implementation report and its conclusions. This meeting proposed the creation of four working groups on e-commerce, financial services, other related issues, and its implementation that will be added into the UNCTAD Secretariat report. It also discussed the modalities for the revision of the UNGCP which is to be submitted to the Seventh United Nations Conference to review all aspects of the set of agreed equitable principles and rules for the control of malpractices related to business.
In July 2013, the third Ad Hoc Expert Meeting was held which discussed the modalities report and its conclusions along with other issues that were highlighted by member States.
The Seventh United Nations Conference which was held in Geneva from 6 to 10 July 2015 was adopted by unanimity. This conference suggested the General Assembly of the United Nations at its seventieth session in 2015 to consider the adoption of the revised draft resolution on consumer protection and the United Nations Guidelines on Consumer Protection as annexed to this resolution. The General Assembly finally adopted this resolution and the revised UNGCP on 22 December 2015 in Resolution 70/186.
The Legal Nature and Application of Guidelines
Although these guidelines are not legally binding, their strength comes from their adoption by the General Assembly of the United Nations and the consensus of countries from around the world. Covering a wider range of consumer protection areas including consumer education and information, health and safety, promotion of economic interest, and effective redressal, these guidelines have gradually become a primary reference point for the member States e.g., Santana and Muniz Cipriano 2017, pp. 25–37. Brazil and Australia were also inspired by the provision of the guidelines to update their consumer protection regimes (Harland 1997, pp. 7–10). The UNGCP Section VI on international cooperation was significantly revised in 2015 adding several new Guidelines to promote stronger cooperation between the different national agencies which is necessary as there is no international court to deal with cross-border consumer disputes.
According to Guideline no.79, Member States should try to develop mechanisms for the exchange of information on national consumer protection policies between the countries and to promote cooperation in the implementation of relevant policies. According to Guideline 82, all member states should cooperate in combating deceptive and fraudulent cross-border commercial practices and their agencies should develop a framework for the same. Further, a network of enforcement agencies of every country is encouraged to designate a relevant enforcement agency to facilitate cooperation (Guidelines 83–85 and 87). Finally, Guideline 89 asks its Member States to strengthen the cooperation between the courts and working agencies using bilateral and multilateral arrangements to facilitate the cross-border recovery of foreign assets. The last group of “cooperation” Guidelines finally encourages member states to work together to promote capacity building for sustainable consumption, and to facilitate cooperation between consumer groups through information programs and education (Guidelines 91–93).
Intergovernmental Group of Experts (IGE)
Guideline 95 establishes a special Intergovernmental Group of Experts (IGE) on consumer protection law and policy which has numerous functions including providing data on the attainment of the Guidelines objectives and their implementation (Guideline 97 d and e). Other important functions of the IGE include the assessment of studies and information from international organizations, exchanging work programs, drafting of reports and recommendations on national consumer protection policies, and periodical reviews of UNGCP (Guideline 97 f–i). While the IGE deals with a wide range of consumer protection areas, Guideline 98 imposes some limitations which require IGE not to judge the activities of countries or companies concerning specific transactions.
As of 2019, the IGE had already held four sessions in Geneva. Three features of them that make the IGE particularly influential in improving consumer protection are firstly it offers a forum for multilateral discussions and consultations, secondly it carries out voluntary peer reviews, and thirdly it carries out periodical reviews of the Guidelines.
We still do not have a proper implementation assessment post-2015, although it shows that cooperation had developed in different ways between countries and relevant agencies over the previous decades. At the bilateral cooperation level, several agreements exist like the Chile–EU, and Chile–Peru agreements which cover training and assistance programs and exchange of information related to consumer protection. At the regional level also, UNCTAD has promoted cooperation through initiatives like the Competition and Consumer Protection Programme for Latin America (COMPAL), Committee on Consumer Protection of the Association of Southeast Asian Nations (ASEAN), and the MENA Programme for the Middle East and North African countries. Despite the increasing number of cooperation activities, challenges remain especially concerning dispute resolution at the international level due to lack of clarity on applicable laws and jurisdictions which calls for the creation of a specific international body that encourages cross-border consumer dispute resolution.
Are These Guidelines Legally Binding To The Member States?
No, these guidelines are not legally binding and enforceable, but they act as a moral code of conduct for the member states to follow.
Is UNGCP Open To Amendments And Changes?
As many changes and amendments are already done by the committees and commissions. So, it is open to productive amendments.
Does UNGCP Take Small Consumer Complaints Under Its Consideration?
As UNGCP are mere guidelines and are not enforceable so they do not take any kind of complaints under their consideration but they do allow the specific countries to take up the complaints and solve them with the help of their redressal committees which were set up under these guidelines.