Latin American countries have opted to follow the codified route for consumer protection legislation, after the French model expressed by the Code de la Consommation. Differently from the French model, however, the Latin American experience is not a consolidation of pre-existing laws, but rather an attempt to break new ground in the legal treatment of consumer relations. Accordingly, the Latin American Parliament, an advisory but official institution, approved on 30 June 1997 a Model Code for the Protection of the User and the Consumer. In addition, many Latin American countries have inserted some basic canons of consumer protection in their respective constitutions.
As to the the legal treatment of the matter in the Common Market of the South (MERCOSUR), a trade market formed by Argentina, Brazil, Paraguay and Uruguay, all the countries have codified the consumer protection legislation. In all cases, the codification is quite recent and in some countries, notably Brazil, the respective legal institutions are amongst the most advanced, from a perspective of comparative law. In June 2004, MERCOSUR countries signed a cooperation agreement amongst the official agencies for consumer protection, with a view to assist international travellers.In Argentina, the Constitution of 1994 ensures in its Art 42 that “the consumers and users of goods and services are entitled, in their consumer relations, to the protection of their health, safety and economic interests; to truthful and adequate information; to the liberty of choice and to conditions of equitable and dignified treatment”. In addition, the Argentine Constitution determines that ordinary law shall establish procedures both for the prevention and resolution of conflicts, and determine the regulatory benchmarks for public services. Article 43 of the Argentine Constitution establishes collective actions for consumer protection matters.
The basic consumer protection statute in Argentina is Law 24,240 of 15 November 1993, as modified by Law 24,999 of 30 July, 1998. The Argentine law defines the concept of “consumer” in terms of both individuals and juridical persons, as well as that of the purveyor, but expressly excludes the sale of used merchandise and the services of the so-called liberal professions. The law introduces a system of repair, substitution and return of merchandise sold with problems, and offers rules governing the bad rendering of services. There are specific provisions regulating the rendering of public services.
With respect to contractual protection, the Argentine legislation offers a list of what are abusive clauses, as well as rules for the interpretation of contracts. In addition, the law deals with the administrative agency with power over consumer relations, the complaint procedures and applicable sanctions. In Argentina, the principle of objective responsibility is applicable for the determination of damages in consumer relations. The Brazilian Constitution of 1988 determines that the “State will promote, according to the law, the consumer protection”. The consumer protection statute in Brazil is Law 8,078 of 11 September 1990, as regulated by Decree 861 of 9 July 1993, the Consumer Defence Code (CDC). The CDC creates a consumer protection policy founded on the basic canon of the recognition of the vulnerability of the consumer, whilst seeking to restrict abusive practices in the market and to improve the quality of products and the provision of services.
According to the CDC , consumers are entitled to:
(a) life and health protection in consumer relations;
(b) consumer acknowledgement on products and services;
(c) protection against misleading or abusive advertisements;
(d) contractual guarantees;
(e) compensation for damage;
(f) access to justice;
(g) facilitated defence of their rights;
(h) good quality of public services.
The CDC defines “consumer” as “the natural or juridical person who buys or uses a product or a service as the final user”. The “supplier” is defined as ” the natural or juridical person, private or public, domestic or foreign … which performs the activities of production, assembly, creation, construction, transformation, importation, exportation, distribution or commercialisation of products and services” . As opposed to Argentine law, the CDC does not exclude the so-called liberal professions.
Amongst the principles upheld by the CDC are the reversal of the burden of the proof, subject to a criterion of reasonableness applied by the courts, with a view to transferring to the supplier the obligation to prove that the facts alleged by the consumer did not occur or occurred differently than claimed. There is also the recognition of the principle of the strict liability of the supplier, reflected in the obligation on the part of the purveyor to pay compensation for the damage caused. The subsidiary liability of the seller is also recognised in certain cases.
The CDC also protects consumer contractual matters, itemising a number of clauses and practices regarded as abusive. Such clauses are deemed to be null and void. Consumers are also protected from false or misleading advertisements by norms that prohibit such practices and provide for pecuniary and criminal sanctions, in addition to corrective advertising.
Class actions on behalf of consumers can be brought in Brazil by the Public Prosecution Service, the State, by public consumer defence agencies and by nongovernmental organisations. Official public defence agencies include the Department of Economic Law (SDE); the National Department of Consumer Defence; the Consumer Police (DECON); and the Institute of Weights and Measures (IPEM). The Paraguayan Constitution of 1992 deals with the matter of consumer protection in three different articles. Article 38 ensures recognition of consumer rights. Article 65 itemises the basic rights of consumers, which are: protection on the part of the State; information on the goods and services available for consumption, health and safety. On the other hand, Art 72 determines the responsibility of the State for the quality control of products and services.
The applicable statute in Paraguay for the protection of consumer rights is Law 1,334 of October 1998. The law has 56 articles dedicated to consumer protection with respect to health, safety, economic interests and dignity. The basic rights include the right to education and to clear and transparent information; protection against false advertising; and the right to effective compensation for damage.
Similarly to the Argentine law, and contrarily to the Brazilian statute, the Paraguayan legislation specifically excludes the provision of services by the so-called liberal professions. In addition, the Paraguayan law leaves much to be desired with respect to the regulation of quality as well as to procedural matters in connection with consumer litigation.Uruguay is the only MERCOSUR country with no reference whatsoever to consumer protection in its constitution. Uruguay was also the last country to regulate the matter in the trade bloc. This was only done in 1999 via Law 17,189, in force since June 2000. Before this legislation, consumer relations were regulated by the Civil Code of 1869, with some amendments.
In spite of this delay, the Uruguayan legislation leaves much to be desired as it eschews important topics such as strict liability, subsidiary liability, product warranties and other matters of relevance for consumer protection. These omissions characterise Uruguay as the least-developed member of MERCOSUR in this area. Within the trade bloc, Uruguay has been consistently resisting efforts towards the implementation of more advanced collective initiatives in the sector.
Lawyer admitted in Brazil, England and Wales and Portugal. GATT and WTO panelist. Brazilian government ad-hoc representative for the Uruguay Round of the GATT. Post-graduation professor of the law of international trade.