International Consumer Protection Law

• Pages: 1373-1440

1373

CHAPTER IX

INTERNATIONAL CONSUMER

PROTECTION LAW

A. Introduction1

As the trend to global marketing continues, policymakers,

consumers, and responsible businesses recognize the importance of

consumer protection standards. Strong, common consumer protection

standards promote consumer confidence in global markets and help

establish a level playing field among competitors. Shared consumer

protection values and priorities allow law enforcement officials to

coordinate efforts to catch cross-border bad actors. However, global

convergence of regulatory requirements remains elusive.

Developed countries tend to have established consumer protection

laws in place, and are increasingly focused on how to update or adapt

existing legal instruments to consumer protection concerns in the digital

environment. Some, like Australia and the European Union (EU), have

taken steps to harmonize internal laws and regulations, on the theory that

harmonized laws benefit consumers and businesses, and the EU has

announced further harmonization efforts in the spring of 2015 with its

Digital Single Market strategy.2 Cross-border initiatives, like the

Transatlantic Trade and Investment Partnership (TTIP) between the U.S.

and the EU, also reflect progress towards development of common

standards.3 In the developing world, however, legal frameworks may be

incomplete. Even where relatively strong consumer protection laws are

in place, limited capacity for enforcement may leave consumers with few

genuine options for redress. This leads to a lack of market trust and an

uneven playing field among competitors.

1. The organization of this chapter has changed from the 2011 and 2013

versions.

2. A Digital Single Market Strategy for Europe, COM (2015) 192 final

(May 6, 2015), available at http://ec.europa.eu/priorities/digital-single-

market/docs/dsm-communication_en.pdf.

3. Press release, Commission publishes summary state of play in TTIP

negotiations (July 29, 2014), available at http://trade.ec.europa.eu/

doclib/press/index.cfm?id=1139.

Position 697 1602567 ABA-tx-Consumer Vol2 16-03-28 16:23:56

1374 CONSUMER PROTECTION LAW DEVELOPMENTS

With consumer protection laws and relevant legal decisions

proliferating, divergent regulatory requirements pose a growing

challenge to businesses that increasingly operate across borders. For

example, a recent decision by the European Court of Justice (ECJ)

apparently recognizing a “right to be forgotten” under privacy law,4 has

prompted global debates about how to balance free speech and privacy.

The decision not only illustrates the persistent lack of harmonization

among national and regional consumer protection laws, but suggests that

diverging laws on critical consumer protection issues are likely to present

continuing challenges.

Another important trend is how regulatory policy instruments in one

jurisdiction influence consumer protection initiatives in other parts of the

world. For example, data breach notification obligations, which started

in the U.S. with adoption of a California law, are spreading not only to

most states in the U.S., but to Canada5 and the EU as well.6 The Conflict

Minerals Act, part of the Dodd-Frank Act, which requires reporting on

the source of tin, tungsten, tantalum, and gold – so-called 3TG minerals

– from the Democratic Republic of Congo and adjoining countries,7

influenced introduction of a similar reporting requirement in the EU.8

4. Case C-131/12, Google Spain SL v. Agencia Española de Protección de

Datos, 2014 EUR-Lex CELEX LEXIS (May 13, 2014).

5. Alberta’s Personal Information Protection Act, and certain provincial

health privacy laws in Canada, impose mandatory breach notification

requirements. Proposed amendments to federal private sector privacy

legislation would also implement mandatory breach notification if it is

“reasonable in the circumstances to believe that the breach creates a real

risk of significant harm to an individual.” See Bill S-4: An Act to amend

the Personal Information Protection and Electronic Documents Act and to

make a consequential amendment to another Act.

6. Regulation No. 611/2013 on the measures applicable to the notification of

personal data breaches. Council Directive 2002/58, 2002 O.J. (L173) 1

(EC).

7. Reporting is required for materials originating from Angola, Burundi,

Central African Republic, the Republic of the Congo, Rwanda, South

Sudan, Tanzania, Uganda, and Zambia in addition to the DRC. Dodd-

Frank Wall Street Reform and Consumer Protection Act, Pub. L. No.

111-203, 124 Stat 1376 § 1502(e)(1) (as codified at 15 U.S.C. § 78m(p)).

8. Commission Proposal for a Regulation of the European Parliament and of

the Council Setting Up a Union System for Supply Chain Due Diligence

Self-Certification of Responsible Importers of Tin, Tantalum and

Tungsten, Their Ores, and Gold Originating in Conflict-Affected and

High-Risk Areas, COM (2014) 111 final (May 3, 2014).

Position 698 1602567 ABA-tx-Consumer Vol2 16-03-28 16:23:56

INTERNATIONAL CONSUMER PROTECTION LAW 1375

The growth of industry-led self-regulation continues to influence the

consumer protection landscape. Self-regulatory standards help promote

best practices on important consumer protection issues, including in new

and emerging markets where legal frameworks and enforcement

infrastructures may be nascent or non-existent.9 Capacity-building

initiatives to promote advertising self-regulation are occurring in Asia

and Latin America. Voluntary standards contribute to improvements in

product safety in many jurisdictions.

In this chapter we examine key areas of convergence and divergence

in global consumer protection laws, policies, and self-regulation.

B. International Consumer Protection: Policies and Principles

1. International Consumer Protection Issues: Divergence and

Convergence

Core consumer protection concerns are similar worldwide, but

countries have taken different approaches to consumer protection

regulation and enforcement. Differences in implementation at national

level, enforcement priorities, and how the ecosystem responds derive

from differences in legal frameworks, as well as societal and cultural

differences between markets. Localized consumer protection initiatives

can serve as incubators for new ideas on consumer protection, and are

increasingly shared globally. However, each time they are adopted into

local law, they tend to be revised, sometimes in significant ways,

complicating compliance efforts for businesses seeking to provide goods

and services to consumers around the world. The Australian Consumer

Law, which became effective in 2011, and the Consumer Rights

Directive in the EU, which took effect in June 2014, are examples of

important initiatives seeking to harmonize internal consumer protection

standards in an effort to benefit consumers and businesses alike.

9. See 2014 Annual Summit on Commercial Dispute Resolution in China,

International Chamber of Commerce International Court of Arbitration

and Beijing Arbitration Commission (June 4, 2014), available at

http://www.iccwbo.org/Training-and-Events/All-events/Events/2014/

2014-Annual-Summit-on-Commercial-Dispute-Resolution-in-China/.

Position 699 1602567 ABA-tx-Consumer Vol2 16-03-28 16:23:56