Chapter 11 Consumer Protection - Truman State...

Chapter 11: Consumer Protection

Teel Gordon, Ashley Legg, Iliyana Kuneva, Natalie Graf and Angela Suit, Katy Maestas, Joe Stock, Courtney Drummond, Bryce Jones

I. HistoryThe United States government first began its efforts at consumer protection early

in the 20th century. In 1906, the noted author Upton Sinclair published a book titled The Jungle, which described the unhygienic and dangerous conditions of the meat-packing industry in Chicago, Illinois. After publication, President Roosevelt sent a commission to Chicago to determine the validity of the book’s claims. Discovering that the conditions of the meat-packing plants were actually worse than the conditions exposed in The Jungle, the United States Congress passed the first federal consumer protection acts, the Pure Food and Drug Act and the Meat Inspection Act.

The two acts were the first federal regulations designed to protect consumers from hazardous food and dangerous medicines and continue to regulate the food and drug industry today. Sinclair’s book sparked the beginning of numerous literary exposés of corruption and consumer abuses, including Lincoln Steffens’s Shame of the Cities and David Graham Phillip’s Treason of the State. These literary works were instrumental in the development of federal consumer protection regulations.

The next major milestone in consumer protection occurred in 1914 with the creation of the Federal Trade Commission, an important government agency that is responsible for consumer protection and competition jurisdiction. In the “New Deal” period of time during President Roosevelt’s presidency, many federal, state, and local regulatory agencies were also created. Since then, consumer protection has evolved to include regulations over concerns such as environmental pollution.

Consumer protection has continued to involve. Many federal, state, and local regulatory agencies have emerged to help protect consumers from corruption and abuses. In order to understand the subject fully, we must first further examine the concept of consumer protection.

II. Definition of a ConsumerA consumer is a person who buys goods or services for personal use or ownership

rather than for commercial use. Commercial use includes buying items for the purpose of resale or production. For example, when a person goes to Wal-Mart to buy a camera, he

Chapter 11: Consumer Protection Page 1

or she is a consumer. However, businesses such as Wal-Mart, which buys goods for resale, would not be considered consumers.

III. Purpose of Consumer Protection LawsConsumer protection laws exist with the main purposes of promoting fair

competition and the distribution of accurate information within the consumer market. In addition, consumer protection laws exist to prohibit businesses that commit fraud or that practice unfair tactics from gaining an inequitable advantage over competitors. Also, the laws help protect the weak and those unable to defend themselves. Consumer protection laws are enacted with the view that consumers are entitled to certain rights in the process of acquiring goods or services for personal use or ownership.

IV. Agencies Protecting ConsumersA. Federal Trade Commission (FTC) The Federal Trade Commission (FTC) is an independent agency that reports to

Congress on its actions. The FTC is responsible for both consumer protection and competition regulation. The FTC performs these duties using a number of methods. The FTC promotes aggressive and effectual law enforcement for consumer protection and competition regulation breaches, provides its expertise to federal and state governments, and creates policies and research resources for practical application.

The FTC consists of three bureaus which provide different services. The FTC’s three bureaus are: the Bureau of Consumer Protection, the Bureau of Competition, and the Bureau of Economics. The Bureau of Consumer Protection is responsible for the enforcement of consumer protection laws passed by Congress as well as regulation rules enacted by the Commission. The Bureau of Consumer Protection consists of seven divisions. These seven divisions provide services relating to advertising practices, consumer and business education, enforcement of federal injunctions, financial practices, marketing practices, planning and information regarding consumer protection, and enforcement of consumer privacy. The Bureau of Competition “champions the rights of American consumers by promoting and protecting free and vigorous competition.” The Bureau of Competition accomplishes this by 1) reviewing business mergers and acquisitions, 2) monitoring business practices in the marketplace to find anti-competition practices, 3) encouraging competition in high-consumer-impact markets, and 4) providing relevant competition information to lawmakers and users. The Bureau of Economics supplies economic data to antitrust and consumer protection investigations


and regulations. The Bureau of Economics also evaluates the economic effects of regulation and provides relevant recommendations.

B. United States Food and Drug Administration (FDA) The Food and Drug

Administration (FDA) is an agency within the Department of Health and Human Services. The FDA regulates food, medical devices (pacemakers), biological products, medicines, vaccines, veterinary drugs, products emitting radiation, tobacco products, and cosmetics. The FDA reviews the safety and effectiveness of new products before they reach the market. After a product is on the market, the agency oversees its manufacturing and handling. The FDA also develops the standards and regulations that companies must follow to make safe and effective products. In addition, the FDA supports litigations for breaches of FDA standards and regulations.

New warning labels for tobacco products are going to be required in 2012. The change is from mere words to a different set of graphics pictures and language.

C. United States Food and Safety Inspection Service (FSIS)


FDA Supreme Court Case:

Wyeth v Levine Nov 2008

In 2008, a woman in Vermont was given an intravenous (IV) injection of a drug called Phenergan. Her arm began to develop gangrene and had to be amputated due to the effects of the drug. Ms. Levine, the patient, argued that the high risk of gangrene was not properly warned on the label. Levine brought her case against Wyeth Pharmaceuticals to the Supreme Court and won her case. The rulings determined that FDA oversight is not specific enough to provide guidelines for labeling, and that ultimately, the drug company is responsible for explaining the risk of the drug. Wyeth v Levine set a precedent for future cases that clearly disadvantaged pharmaceutical companies who face thousands of lawsuits against them.

Responsibilities of the USDA:

Expand markets and support international agricultural trade

Finance more jobs and housing in rural areas

Support utilities and infrastructure in rural America

Reduce food-borne hazards

Provide food assistance and nutrition education and awareness

Manage public and private U.S. land

From: (http://www.usda.gov/)

The United States Department of Agriculture’s (USDA’s) consumer protection body is the United States Food and Safety Inspection Service (FSIS). The FSIS regulates the safety of meat, poultry, and egg products and the labeling and packaging of these products. The FSIS’s responsibilities are summarized below.

D. United States Consumer Protection Safety Commission (CPSC)The Consumer Protection Safety Commission (CPSC) regulates more than 15,000

products which are divided into six major categories: child products, toys, household products, outdoor products, sports and recreational products, and specialty products. The CPSC issues standards with which industries must comply and also does research on potential product hazards. Companies are responsible for conducting primary research before their goods are offered for sale to the public. Though the CPSC does not test products before they go on the market, the agency does recall items


A very large area of the CPSC’s activity falls under consumer product recalls, in which a specific brand and model of a product is called in by a consumer who deems it dangerous or defective.

These recalls are published daily and usually imply a strong recommendation to cease using the product. A consumer in

possession of the defective model can send it in to receive a partial or full rebate, or a replacement. There is no end date to a product

recall period. Upon receiving and reviewing a product recall, standard CPSC policy is to send the complaint back to the consumer for personal verification of all facts. The complaint is then sent to

the manufacturer. Investigative research may be done by the CPSC at the agency’s discretion. They receive thousands of product recalls and are responsible for over 15,000 different kinds of

products, so it is quite impossible to research them all. (www. cpsc .gov )

http://www.cpsc.gov/

that are either unreasonably dangerous to the public or violate one of its issued standards. The CPSC can also ban products and/or require them to install extra safety features if deemed necessary.

E. National Highway Safety Traffic Administration (NHTSA) The National Highway Safety Traffic Administration

(NHTSA) is part of the Department of Transportation. The NHTSA is responsible for carrying out highway safety and consumer programs previously carried out by the National

Highway Safety Bureau. The NHTSA regulates motor vehicles, child seats, tires, air bags, and brakes. The NHTSA develops and enforces safety standards for motor vehicles, tests motor vehicles for safety, and licenses vehicle manufacturers. The agency is also

responsible for enforcing the Corporate Average Fuel Economy Act (CAFÉ), whose purpose is to encourage the production of fuel-efficient vehicles.

F. Consumer Protection Financial BureauThis new agency will enforce rules involving consumer finances. These include

consumer loans, mortgages, credit and debit cards, truth in lending (see below).

G. State Attorney General The Attorney General’s Office provides

consumers with assistance for filing complaints against businesses that have committed fraud against the consumer. The assistance includes providing relevant information to consumers and directing them to the pertinent agencies. The Attorney General, however, does not provide legal services. Missouri’s 2010 Attorney General is Chris Koster.


New CAFÉ Standards

President Obama announced new CAFÉ standards in May of 2009. The new standards project a goal of achieving 35.5 mpg fuel efficiency in the year 2016, four years earlier than previously required. Stricter guidelines aim to cut greenhouse gas emissions and lessen our dependence on oil; however, hindering consumer choice is a widespread source of concern.

H. Local Prosecutors Local prosecutors take legal action against criminally negligent scams on

consumers. Local prosecutors also act against fraudulent use and procurement of debit or credit devices and identity theft. In addition, local prosecutors also fight against exploitation of the elderly and disabled among many other issues regarding consumer protection at the local level.

I. Small Claims Courts Small claims courts are judicial institutions at the

state level that protect consumers by hearing civil claims cases under a dollar maximum. Small claims courts hear simple cases where the civil claim does not exceed $5,000 (for Missouri). The $5,000 limit does not include the court costs and interest rate on the $5,000 that may be awarded by the judge. (See Chapter 2 on courts.)

V. Consumer Protection in Advertising A. Deceptive Advertising

There are three standards that determine what defines a “deceptive” advertisement. First, there must be a misrepresentation that is likely to mislead consumers. If the product does not fit the purposes for which it is sold, then the advertising is considered deceptive. Also, either the misrepresentation or the omission of fact must cause customers to form false beliefs for a product’s intended use. In addition, if services promised under a warranty or contract are not performed by the company, the advertisement can also be considered as misrepresenting

the product. The second standard is that a reasonable number of consumers must be misled.

The Commission considers numerous questions in deciding whether or not a significant amount of consumers have been misled. The Commission considers issues such as how clear the representation is, how conspicuous the information is, and how familiar the public is with the service or product.

The third standard is that the representation, omission, or practice must be material. A material representation or practice is one which is likely to affect the choice


A Word on Advertising…

The FTC regulates advertising and labeling of consumer products. In order for it to be considered legal, the advertising must not be deceptive or unfair. The FTC looks for the following in deceptive advertising:

- the actual word choice/content is misleading (or ambiguous)

- the advertising is likely to mislead a normal, intelligent consumer (not just a dummy)

- there is proof that a consumer actually acted in ways consistent with the deceptive claim of the ad

Here are some standards for advertising:

- Tobacco: Under §1333, any packaging, ads, or billboards regarding cigarettes must include a Surgeon General’s Warning label

- Environmental Labeling: the more specific it is, the less likely it will be deceptive. Claims of recycled material must be very specific (EG: “recycled box” is better than “recycled material,” which is more ambiguous and more open to claims for deception.)

- Labels: must identify commodity, name and place of business of manufacturer/packer/ distributor, and net quantity expressed in largest whole unit (http://www.ftc.gov/>)

or conduct of an average prudent consumer. Claims involving health, safety, or other areas with which consumers are concerned are considered material.

B. StatisticsWhen claims such as “nine out of ten consumers prefer this product,” “studies

show,” “tests prove,” and etc. appear in an advertisement, then the Commission expects the company to have at least the advertised level of substantiation in the form of research. If the advertisement contains claims implying to consumers that the company has some level of support, the company must have the amount and type of support that it actually conveys to consumers. Consumer surveys and expert testimony may be used to determine the level of substantiation consumers expect.

C. Endorsements The FTC uses the terms

endorsements and testimonials interchangeably. The FTC defines endorsement as “any advertising message (including verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name or seal of an organization) which consumers are likely to believe reflects the opinions, beliefs, findings, or experience of a party other than the sponsoring advertiser.” There are three types of endorsements. The first one is consumer endorsements, i.e. endorsements featuring users of the product or service being sold. Another type is expert endorsements or the opinions of acknowledged experts qualified in the relevant field of study. For these types of endorsements, supporting evidence, such as tests, must be provided. The last type of testimonial is that


http://www.ftc.gov/

by an organization. These endorsements represent the opinions of a group whose collective experience exceeds that of any individual member.

D. Retroactive AdvertisingIf a false advertisement runs long enough to become ingrained into the society,

the FTC can order retroactive advertising. Retroactive advertising means that the company has to correct the mistaken beliefs it has created, or take back what they have said in a new advertisement.

VI. Consumer Protection in Labeling Some sort of labeling is required on

almost everything in today’s market. Labeling is required on food, clothes, cigarette warnings, new automobile stickers, EPA fuel ratings, and used car warranties. The required label on food, for example, is the nutrition facts. The requirement information on the nutrition facts includes the serving size, servings per container, and the amount of food per serving. For clothing the labeling is different. Clothing labels require a listing of what the clothes are made of, cleaning instructions, and where the clothes are made.

Cigarette warning labels are different than food and clothing labels. Cigarette packages must list the Surgeon General’s warnings. In 1981, Congress passed the Comprehensive Smoking Education Act. This act required four specific health warnings on all cigarette packaging and advertisements. These four warnings are 1) Smoking Causes Lung Cancer, Heart Disease, Emphysema, and May Harm Pregnancies, 2) Quitting Smoking Now Greatly Reduces Serious Risks to your Health, 3) Smoking by Pregnant Women May Result in Fetal Injury, Premature Birth, and Low Birth Weight, and 4) Cigarette Smoke Contains Carbon Monoxide. As mentioned, new more graphic warnings will be required in 2012.


Large US manufacturers participate in a labeling program called Smart Choices. This program informs consumers of the calories per serving and servings per container on qualified items. The check-marked label identifies the food as a healthy selection in its specific product category, based on the Dietary Guidelines for

WARNING: Smoking can kill you.

More than 1,200 people a day are killed by cigarettes in the United States alone, and 50 percent of all long-term smokers are killed by smoking-related diseases. Tobacco use is the cause of death for nearly one out of every five people in the United States, which adds up to about 443,000 deaths annually.

New automobiles have a required sticker label as well. This sticker has the suggested list prices for the base, the options and the delivery costs. It also states the gas mileage. The labeling for the EPA fuel ratings must display a car’s estimated mileage on city streets as well as highways. Used automobiles also have a required label, which indicates to a buyer whether or not the car has a warranty. If no warranty is listed, it signifies that the buyer is taking the car as is, or without a warranty of any kind.

VII. Consumer Protection in SalesA. Bait and SwitchA bait and switch occurs when a company advertises a product at a low price to

attract customers in the store. The company then claims that they are out of the product while trying to convince a customer to buy a different product at a higher price. This practice is regulated by the FTC or the state attorney general.

B. Home Solicitation SalesConsumers have a three-day cooling off period to

cancel transactions made with door-to-door sellers. This regulation extends to phone and internet sales as well.

C. Mail, Phone, or Internet Order RuleChapter 11: Consumer Protection Page 9

Companies must deliver the product sold within 30 days or the customer has the right to cancel the order. An exception to this is when the customer is informed at the time of purchase that the transaction will take longer than 30 days.

D. Inflated List PricesInflated list prices occur when companies set prices above the manufacturer’s

suggested retail price. Then, they try to scam customers by "lowering" the price and calling it a sale. This practice is considered faking a sale price.

E. A la Carte Pricing for Funeral HomesFederal regulations require that funeral homes disclose a full list of detailed prices

for services offered. In the past, funeral homes offered package deals that sometimes included thousands over what are actual, necessary expenses (for example, a deceased person who is cremated pays for the price of a casket). Also, families are not required to buy a casket directly from the funeral home, which in the past, was not made apparent to consumers. Funeral home packages are an area of concern in the arena of consumer protection because consumers are in an extremely vulnerable situation at the time of sale. Family members of a lost loved one are likely not in the mood to “fuss” over fair pricing, and can easily be taken advantage of.

VIII. CreditA. Truth in Lending Act (TILA)The Truth-In-Lending Act (TILA) is a federal law that was passed in 1968 that

requires that the terms of the lending agreement and all costs be clearly stated. For example, lenders and creditors have to give customers the annual percentage rate (APR) for consumer transactions of $25,000 or less or consumer residential transactions (real estate). The lenders and creditors can be sued or incur other penalties if this information is not disclosed.

TILA also allows for consumers to cancel some credit transactions and provides a way for fair and timely settlement of credit billing disputes. TILA also places limitations on some home equity plans. Finally, TILA also disallows some credit actions that are secured by a consumer’s home.

B. Credit Card LiabilityIf a consumer loses a credit card and reports it before the card is used, he or she

has zero liability. If a consumer reports the credit card stolen after the card has been used,


the consumer’s maximum liability is $50. There are also a few other restrictions for credit card companies. For example, it is illegal to charge more for a credit card payment than it is to charge for a cash payment unless agreed to before the transaction is completed. Also, it is illegal to send out an already-activated, non-solicited credit card. Those under 21 need an adult to co-sign or show that they have the ability to pay.

C. Debit Card LiabilityIf a debit card is lost or stolen and is reported before it is used, a consumer has

zero liability. If the debit card is reported within the first two business days, a consumer has a $50 liability. If the card is reported after two days, a consumer has a $500 liability. If the card is not reported within sixty days, the cardholder is liable for any amount charged on the card.

New rules that apply to debit card that require that debit card issuers cannot pay an overdraft (not enough money in the account) and charge a large fee unless the users agree to participate in the overdraft program. If a person wants some kind of overdraft protection without large fees, see whether the overdraft can be linked to a checking account or credit card. This depends on the bank. So the default rule is now “opt out” which means the debit card company will not pay for goods or services if you have no money in your count; the upside is that you will not be charged a fee for these transactions. A consumer can “opt in” which means that the bank can overdraw your account but then the bank can charge a fee for each transaction which is an overdraft.

D. Balloon Payment Clauses A balloon payment is a large payment at the end of a payment series that is larger

than the normal monthly payment. This payment usually takes care of the unpaid balance of the loan at a specified date. It is not automatically illegal, but the balloon payment clause must be prominently displayed on the lending contract.

E. Acceleration of Payment ClausesA company that gives out a loan has the right to sue for full repayment of the loan

at anytime. However, the company must have adequate justification for the lawsuit. For example, the customer may have defaulted on payments. Another two examples of adequate justification is if a customer does not maintain insurance on a car subject to a car loan or if a borrower is trying to sell a car subject to a loan without telling the lender.

F. Equal Credit Opportunity ActThe Equal Credit Opportunity Act is an anti-discrimination law. The act states

that lenders cannot discriminate by race, religion, origin, race, sex, marital status, source


of income, or any other demographic factor when giving out a loan. An example of a violation of this act is an activity called red lining. Red lining is when banks choose geographical regions or neighborhoods to always deny loans to.

G. Fair Credit Reporting Act

The Fair Credit Reporting Act regulates the collection, dissemination, and use of consumer credit information. The Fair Credit Reporting Act is the basis for consumer credit rights. The act protects consumers against false information and abuses in their credit history reports.

There are three main credit reporting entities: TransUnion, Equifax, and Experian. The credit reporting agencies have three main roles. The credit agencies are responsible for providing accurate credit information to consumers and for notifying consumers of previous negative credit activity if the activity is put back into the consumer’s credit information. However, credit reporting entities cannot keep negative information in the credit report for an unreasonable amount of time.

Creditors themselves provide information to these agencies. The creditors must provide accurate information, investigate and correct disputes and negative information, and report to consumers when negative information will go on to the consumer’s credit report. Many people can access a consumer's credit report, such as potential employers and other creditors. The creditors have the duty to let the consumer know if adverse action was taken against them due to something in a credit report, and the creditors also have to let the consumer know which of the three agencies the creditor used so that the consumer can verify or contest information.

Consumers are given free access to a credit report once a year. Consumers can dispute false information in their credit reports. Credit agencies must, by law, adopt reasonable procedures to maximize the accuracy of the report, display only current information in the report (usually seven to ten years worth depending on the type of


How to get your Free Annual Credit Report

1. Go to www.annualcreditreport.com 2. Select your state from the drop down menu and click

“GET STARTED.”3. Fill out the form with information about yourself.4. Once your form is filled out completely, choose one of

the “Big 3” agencies, Experian, Equifax, or TransUnion, to process your credit report. Don’t sign up for anything that you will pay for.

5. Print or save your free annual credit report.

WARNING: You may only view your credit report for a certain amount of time for free. Avoid the pop-ups and offers along the way that will try to trick you into purchasing other services!

http://www.annualcreditreport.com/

information), and ensure that users of the information are only using it for legitimate business needs. Often, mistakes exist in credit reports. A consumer has the right to sue in a state or federal court and recover damages for willful noncompliance with the act by any parties involved.

H. Fair and Accurate Credit Transactions Act (FACT)

The FACT is a set of amendments to the Fair Credit Reporting Act which protects consumers from identity theft and fraudulent reporting of financial information. Consumers have the right to file reports of identity theft with credit reporting agencies and to have

the report reflected in the consumer’s credit reports that outside users see. The FACT also requires that the FTC and other government agencies oversee the standard settings in how companies get rid of customers’ financial information, ensuring that it is done safely.

I. Credit Card Accountability, Responsibility, and Disclosure Act (Credit CARD Act)

On May 22, 2009, President Barack Obama signed into the law the Credit Card Accountability, Responsibility, and Disclosure Act (Credit CARD Act). The new act attempts to improve customer disclosures and stop some bad-faith practices in the credit card industry. Overall, the Credit CARD Act introduces 8 major changes in the credit card industry.1

First, the credit card issuers will no longer be allowed to retroactively raise interest rates unless the rate increase is triggered by a 60-day payment delinquency or a promotional rate expiration. In addition, credit card issuers will be forced to lower the interest rate to the previously lower rate (i.e. if the increase was triggered by a 60-day payment delinquency). Second, consumers will now get a 45-day notice of rate hikes before the change occurs. However, the 45-day notice rule only applies to rate hikes and not to limit changes. Third, overlimit fees will be limited to one per cycle unless a consumer agrees to allow the credit card company to approve overlimit purchases.

Next, student consumers must now either show an independent source of income or provide a co-signer over the age of 21 to get approved for credit. Fifth, the Credit CARD Act eliminated double-cycle billing. The sixth change is fairer payment allocation 1 Leslie McFadden, Bankrate Website: 8 Major Benefits of New Credit Card Law, 2010, Retrieved July 18, 2010, from http://www.bankrate.com/finance/credit-cards/8-major-benefits-of-new-credit-card-law-1.aspx.


Zombie Debt

Zombie debt is years old debt that can come back to haunt consumers through bill collectors. Many times consumers have debt that is so old that the debtors have given up on collecting a payment. This happens with debt from a membership at a gym, expenses at a health care facility, and even with credit card companies, occasionally. When a customer fails to pay their bills after a certain amount of time has passed, these entities sell the debt to collection agencies for pennies on the dollar. The statute of limitations has frequently passed on collecting these debts. Consumers should educate themselves about which debts they truly owe and those they don't.

in that monthly payments must be applied to higher-interest charges first. The next change is that credit card companies must now send statements 21 days (versus the previous 14 days) before a monthly payment is due. The eighth and final change is that there are new gift card protections.2

J. Fair Debt Collection ActThe Fair Debt Collection Act regulates how bill collectors can interact with

customers owing money. This Act protects consumers from overly aggressive, deceptive, and unfair actions taken by debt collectors. For example, debt collectors can only speak with the debtor. Also, debt collectors can only contact a consumer during normal business hours and only at home if personal calls are not allowed at the consumer’s place of work. Furthermore, the debt collector must stop contact upon receipt of a written notification that the debt will not be paid or that the debtor desires to end communication. Debt collectors cannot contact debtors if legal counsel represents them, unless the attorney has given consent.

There are three types of practices specifically forbidden by this act. The first is harassment, oppression or abuse by the debt collector. Violence and inappropriate language are examples of this. The second is giving false or misleading misrepresentations. A debtor cannot lie about or make up consequences for not paying the debt or information

about the debt to scare the debtor. The last practice forbidden is that debt collectors cannot engage in unfair practices like collecting the wrong amount of money, making a collect phone call to the debtor on a false pretense, or making unjustifiable claims on the debtor’s belongings and property.

2 Ibid.


Bank Overdraft Fee Regulations

Banks are making an estimated 45 billion dollars per year on overdraft fees and the government is cracking down. Consumers incur overdraft fees of $35 or more for a purchase of anything that exceeds their account balance (even if it is a small purchase such as a cup of coffee). With the current system, banks can charge multiple overdraft fees per day, which can add up to hundreds of dollars in fees before the cardholder is notified.

On July 1, 2010, banks will be required to contact account holders and give them the option to “opt-in” or “opt-out” of nationally standardized coverage. If they opt-in, then the bank will send them guidelines of how the overdraft fees will work in order to ensure their complete consent. If they opt-out, overdrawing their account will result in the purchase being denied before a transaction takes place.

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