THE Consumer Protection Act (“CPA”) is applicable to all persons involved in trade and business through the purchasing or vending of goods or services.Significant amendments were made to the CPA, which took effect in January of this year. Prior to these amendments the CPA may have been said to have had more bark than bite. However, the legislature has clarified certain provisions of the CPA, increased or instituted higher fines, included additional remedies for consumers and established a Consumer Protection Tribunal. As such, if you are a provider of goods or services you may wish to take note of the amendments discussed below.Interestingly enough, for an Act dealing with consumer rights, the CPA previously defined “goods”, but it did not specifically define “services”. A fairly expansive definition of “services” has now been inserted: “the supply to a consumer of anything for a consideration which is not a supply of goods, other than the rendering of any service under a contract of personal services or employment services”. This definition further establishes the broad scope of the CPA. So, whether you are offering banking, advertising or IT services to the public, the CPA applies to you.The definition of a “provider” has also been amended to state that a person will be considered to be a “provider” whether or not they supply the relevant goods or services on a regular basis or as a single transaction. The effect of this amendment is that if you enter into a one off sale, for example of your motor vehicle or even some household items in a yard sale, you will be subject to the provisions of the CPA.An example of the addition of more “bite” to the CPA is seen in the amendments to section 21, which deals with warranties. This section stipulated among other things, that providers must issue explicit warranties in relation to goods or services and that warranties given by manufacturers (whether local or foreign) are deemed to extend to providers in Jamaica who are in turn liable to consumers in relation to such warranties. It now also stipulates that where a provider is in breach of a contract with a consumer, the consumer may recover damages for any loss suffered as a result of the breach that was reasonably foreseeable at the time of contract. Further, where a provider fails to issue a warranty or extend a manufacturer’s warranty (whether or not the manufacturer operates within Jamaica), the provider commits an offence. The provider will be liable on conviction to a fine not exceeding $2 million, or to imprisonment for a term not exceeding two years, or to both fine and imprisonment.The CPA also contains provisions that deal with advertising. The CPA prohibits people from advertising goods and services that he/she does not intend to offer or supply. It also requires people to supply the goods or services at the advertised price for a reasonable period of time having regard to the nature of the market and the advertisement. Breach of these provisions constitutes an offence punishable by a fine of $100,000 or imprisonment for a term not exceeding 30 days. Post amendment, providers are now also required when specifying the price to include all components of the total price payable by the consumer, including General Consumption Tax and any other taxes, duties or charges. This is to eliminate the problem consumers often face, when they look at advertisements; for example, for specially priced airfares, thinking they will be getting a great deal, only to realise at the ticket counter that the advertised price did not include any taxes or duties.The CPA also now states that every contract of sale and advertisement must be conspicuous, legible and in simple and easily understood language. The contract of sale or advertisement must set out the applicable terms and conditions and the provider is required to take reasonable steps to bring such terms and conditions to the attention of consumers. More important, the CPA now specifically provides that where there is doubt as to the meaning of a term or condition of a contract, the interpretation that is most favourable to the consumer will prevail. As such, providers may wish to pay more attention to the wording of their advertisements, offers and contracts as the law is clearly on the side of the consumer.The recent amendments have also provided for the establishment of a Consumer Protection Tribunal (the “Tribunal”). Section 44 of the CPA states that parties may attempt to settle disagreements through mediation by the Consumer Affairs Commission, before taking matters to court. Parties may now refer any matter not settled through mediation to the Tribunal. The Tribunal has the power to make a number of orders, including declaring transactions to be in breach of the CPA; prohibiting the withholding of supplies or the threat of withholding; suspending or modifying the terms or conditions of an agreement which are manifestly unfair to a consumer or which are in contravention of the CPA; requiring the publication of a price list; requiring payment of refunds with interest or the delivery of goods and services; or protecting the confidentiality of a party’s trade secrets or other confidential information. The Tribunal may also make an order in relation to any matter or measure it deems appropriate or necessary for the furtherance of the objects of the CPA.Persons who fail to appear before the Tribunal when summoned or who fail to produce any requested document without reasonable excuse, commit an offence. Such offenders will be liable on conviction to a fine not exceeding $500,000 or to imprisonment for a term not exceeding six months, or to both. Persons who appear before the Tribunal who: (a) without reasonable excuse, fail or refuse to answer questions; (b) give false or misleading information; or (c) commit an act which if the Tribunal were a court would constitute contempt of court, commit an offence and will be liable on conviction to a fine not exceeding $2 million or to a term not exceeding two years, or to both.Finally, any person who fails to comply with an order of the Tribunal will also be guilty of an offence punishable by a fine not exceeding $2 million or to a term not exceeding two years, or to both.If you are a provider of goods or services, this is the time to acquaint yourself with all of your obligations under the CPA. Otherwise, you will be left feeling the bite of its provisions.Simone Bowie Jones is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Commercial Department. Simone may be contacted via firstname.lastname@example.org or you can visit the firm’s website at www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.
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