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Consumer Law against Deceptive Advertising

Buy custom Consumer Law against Deceptive Advertising essay

Background

Roger and Sue attend a weekend training course for Skippers but find that the claims made in the advertisement for the course were false and misleading. The advertisement claimed that the company – A. Dodgers Limited – read as follows,“A wonderful opportunity to gain the practical and theoretical skills needed to skipper a boat safely and efficiently.  This qualification is recommended by the Royal Yachting Association (RYA).  All of our expert coaches are RYA trained and qualified”.

They requested for, signed the application forms and paid £750, which was meant to cover course fees, cost of a room and full board for the weekend (for both of them). The application form had a few exclusion clauses, one of which stated that the clients were taking up the course at their own risk and the sailing center would not be responsible for any loss or damage to property or injury to persons, however caused.

On reaching the center, Roger and Sue found that the food was not fresh, the accommodation was as if meant for one person, while they had paid for two, and the bathroom had to be shared by eight people.

The course was badly run, and Sue even got injured in an accident due to negligence. Roger also discovered that the coaches were not qualified to run the course, and the company A. Dodger Ltd. was not recommended by the RYA as the advertisement had stated. There was a case of loss/theft of personal belongings, and the manager refused to take responsibility for it, as was already mentioned in the exclusion clause.

Apart from this, Roger and Sue had purchased safety jackets from the same center which were advertised as “the safest jacket you can buy”. They found that the straps came away before use, and the light and whistle on Roger’s jacket were not working. These defects made the jacket unsafe. He wants a refund on the jackets as he cannot use them, but the center only agrees to give him a credit note and not cash.

It is evident that the company did not deliver the services it promised and made use of false advertising, both are actions that make them liable according to the consumer law. However, the exclusion clauses specified in the contract threaten the validity of a civil or criminal case against them. In this paper, we attempt to determine the validity of a case by Roger & Sue against A. Dodgers Private Limited.

Advertisement and Contract Specifications

  • An opportunity to gain theoretical and practical skills needed to skipper a boat
  • Qualification recommended by the Royal Yachting Association
  • Course conducted by expert coaches – RYA-trained and qualified
  • Room and full board for the weekend provided for both Roger and Sue at £750 (inclusive of course fee).
  • The sailing center would not accept responsibility for any loss or damage to property or personal injury, howsoever caused.

The exclusion clause was the only condition that the sailing center abided by, the other claims and contract specifications were breached. The methods in which they were breached and potential actions for Roger and Sue are discussed in the following sections.

The offences mainly fall under the ‘misrepresentation of services’, also known as ‘deceptive advertising’ category. The exclusion clause can become void in the case of personal injury, a probability that will be discussed further in this paper.

The claims of the advertisement were what lured Roger and Sue into the course, especially that the course was recommended by the RYA.

The advertisement claimed to provide an opportunity to gain theoretical and practical skills to skipper a boat safely and efficiently. However the course was very badly run. As opposed to the advertised ‘twenty per group’ weekend sessions, this course had thirty people attending it. There was no personal instruction and the coaches arrived late and left early every day. This considerably reduced the amount of time spent on water and did not in any way give the participants an opportunity to gain any practical skills. Going with the description of the issue it does not seem like there was any theoretical training. However, we cannot assume the same, unless stated by Roger and Sue.

On Sunday, which was supposed to be the last day of the course, Sue was in a boat with three people who had never sailed before that weekend. If the course had set out to make efficient ‘skippers’ all participants should have been experienced in at least maneuvering a boat as a minimal requirement. But the three others in the boat with Sue had not even sailed before. In addition, the poor condition of the boat made it capsize when mildly rough handled. There were no safety boats on water as mandated in the RYA regulations, and the four of them were rescued by one of the other boats. Sue hit her head on the boat while it capsized and has been diagnosed with a concussion that gives her frequent headaches.

If the course was being conducted by expert coaches who are RYA trained and qualified they should have been familiar with the regulations, and accordingly conducted courses which specified minimal requirements to attend the course and maintained a standard of teaching that complied with the RYA and its regulations. Just as the course came to an end, Roger discovered that the coaches were not qualified to run the course, and that A. Dodgers Limited’s course was not a recommended qualification by the RYA.

From the above incidents it is clear that the details on the advertisement were meant to mislead participants into registering for the course. This is also authenticated by their exclusion clause and irresponsible behavior in the event of personal injury and loss of personal belongings. They are eligible to be sued under the consumer law – for misrepresenting their services and indulging in deceptive advertising that could prove to be harmful to a lot of people who are misled and decided to attend workshops.

Apart from the way the course was conducted, the facilities provided with respect to the amount of money collected for the same were disproportionate and inconvenient to the participants. The registration form stated full board and a room for the duration of the course for both Roger and Sue together at £750 (inclusive of course fee). The room allotted for Roger and Sue was a single bedroom with a double bed in it, leaving no space for movement or storing their luggage and hanging clothes. It did not have central heating or hot water. On complaining to the manager about the hot water, he waived it off as a temporary problem and directed them to use the showers down the boat without taking any corrective action to make the stay convenient for the participants. The food was not fresh, and for three days the participants consumed just pre-packed that was being re-heated. The bathroom was shared by eight people. Though the facilities were extremely inconvenient and unhygienic, it might be almost impossible to sue the company for the non-availability (or availability) of any specific facilities, because they did not make any promises regarding the quality or comfort of the facilities that would be available during the course. The only facilities they promised were full board (accommodation with breakfast, lunch and dinner on all days). Nowhere had they specified the size of the room, the availability or non-availability of central heating facilities, a bathroom per room provided or fresh food. The dissatisfaction with the facilities arose from customer assumptions and expectations, and the company cannot be blamed for it. This is one of the most commonly employed advertising techniques. Advertisers leave the assumptions to the customers and use wordings that tend to mislead them. When faced with claims for loss or inconvenience the company’s management stated that the assumptions were entirely those of the customers, and nothing of the sort had been promised. The same can be said here, and the company is not legally liable for the above mentioned inconveniences, because they did not promise any comfort.

The personal injury caused to Sue due to the negligence of the company and their not following the RYA regulations is questionable and legally liable because it has caused a health injury. Considering the loss and damage of wetsuits, Roger and Sue had already signed the registration form with the clause that excluded the company from any kind of responsibility in the event of damage/loss. There is not much that can be done with regard to this.

Roger and Sue also purchased two safety jackets which were advertised to be the safest ever. But when they tried them on, the straps on Sue’s jackets came away even before she could use the jacket, and the light and whistle on Roger’s jacket were not working. The straps, light and whistle are the most important aspects of a safety jacket. When they are not working the jacket is no longer safe. If Roger and Sue had had to use them in the event of an accident/emergency, it would not have stood its claim and caused serious injuries. This is the second case of misrepresenting a product by A. Dodgers Limited. They are consciously misleading the public, and this act can lead to dangerous consequences, including loss of lives. On demanding a refund, the store only accepts to provide a credit note and not a refund. Roger can protest against this in court, as the company has proved its negligence of standards and lack of reliability, it is natural for any customer to not want to go back to the store, and a refund is absolutely possible.

The Unfair Commercial Practices Directive

Under The European Unfair Commercial Practices Directive, any practice (information/advertisement/visual) that tends to lead the customer make a transactional decision that he otherwise would not have made is misleading. Claims under such standards need to be classified as either factual or implied. Factual claims are clear and contain facts that speak for themselves. Implied claims, on the other hand, are left to assumptions and practices, and are a little difficult to fight for. In this case – claims of coaches being RYA-qualified and the course qualification being RYA-recommended, are factual claims, because the facts are direct and clear, there is no substitute or workaround a coach not being qualified and the course not recommended by the RYA. Claims about the food, heater, bathroom, etc. are implied claims, because they are not very clear. There might have been other participants who did not find an issue with the facilities or who expect this quality of service. Even if the other participants did complain, the claim could be mistaken for an opinion, and hence would be difficult to challenge.

The action that can be taken against such offenders differs from country to country. The Unfair Commercial Practices Directive in the United Kingdom protects consumers against misleading and aggressive practices. It contains a blacklist of 31 practices that will be deemed unfair under all circumstances, including unfair advertising practices.

According to the Directive, for a claim regarding misrepresentation to be valid the following points need to proved:

  • The facts made the supplier/advertiser must be ‘factual’ not ‘implied’
  • If it is a statement of opinion it needs to be proved that it is a honest statement which could affect a substantial number of people
  • The statement must be a present fact, not projected or future-related
  • The misrepresentation must be material (involve main characteristics of the service, health and safety)2
  • It must have induced the customer to enter into the contract

In the case of A. Dodger’s weekend Day Skipper Course, the statements made by the company in the advertisement were factual, i.e.RYA-recommended qualification course and expert coaches qualified by the RYA. These were statements used to lure customers and not delivered in the real course. Since the advertisement was a magazine, it could, and in fact, did affect a substantial number of people. The statement is a present fact, and the misrepresentation is material. It involves the main characteristics of the service provided, such as the course and its coaches, and it also resulted in the injury of Sue.

 The claims about it being a course that would result in participants being efficient Day Skippers at the end of the weekend course, the course being conducted by RYA-trained and qualified experts and there being theoretical and practical opportunities to learn were all statements that induced Roger and Sue to request brochures and register for the course. In that sense, the advertisement did induce the customer to enter into the contract. If it had not been for the brand name “RYA” on the advertisement, Roger and Sue would not have been as interested in the course as they were, because they were clearly dissatisfied with the facilities provided at the center apart from the course. Therefore, this case satisfies all conditions for Roger to sue the company under the Unfair Commercial Practices Directive.

The Local Authority Trading Standards Services (TSS) and the Office of Fair Trading (OFT) are responsible for the enforcement of Consumer Protection. These could range from self-regulatory procedures and civil action to criminal proceedings and jailing. Self-regulatory procedures involve enforcing laws by regulatory bodies in the relevant industry. For instance, the Advertising Standards Authority (ASA) in the UK exists to ensure that all advertisements are honest and decent.

Penalties for breaching the codes specified by the ASA include refusal of further advertising space, blacklisting and adverse publicity, ineligibility for awards and legal proceedings. Criminal prosecutions require proof that the trader/supplier/advertiser acted recklessly, even though he was aware of it. Other breaches do not require any proof of a specific state of mind.

The usual stance adopted by those convicted of crime is that of something or someone having been beyond the company’s control. Until and unless the company can show proof of the same and of having taken all precautions and exercised diligence, in the event of an unexpected happening, the criminal charges hold strong.

Dodger’s Ltd. is a company that misrepresented its services in a knowing manner and conducted the course as a scam to attract money from the public. They were not going to appoint qualified coaches to train participants, and their course qualification was not recommended by the RYA, yet they specified these in the advertisements to draw more participants. The facilities provided were disproportionate to the amount paid by the participants for the same. The course was not conducted in accordance to the RYA regulations, and the company’s negligence also led to a personal injury that could have turned into a mishap. A. Dodger’s Ltd. Is, therefore, completely liable to Roger and Sue and the average consumer.

Unfair Contract Terms Act 1977

As per the Unfair Contract Terms Act a company cannot exclude liability for personal injury or death resulting from its negligence. It, therefore, is possible for Sue to challenge the Dodger Ltd.’s exclusion clause of not being responsible for any personal injury howsoever caused. This is an example of a misleading statement used by the company7. It leads the customer to believe that she cannot protest against negligence, whereas it is her right to.

Conclusion

This is a case of gross misrepresentation of services and deceptive advertising. Roger and Sue can act against the company under the Unfair Commercial Practices Directive and the Unfair Contract Terms Act. It will be possible for them to challenge the use of the RYA name in their advertisements to mislead interested sailors, as well as the case of their negligence of safety procedures that led to Sue’s injury. Given the proof for the above, it will also be possible for them to receive a refund on the safety jackets.

 

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