COML WK10 L19-20 Consumer Law - Fair Trading Act Flashcards
What is the purpose of consumer law?
What are the two main purposes of the Fair Trading Act (FTA)?
- Promote fair competition
- Make sure consumers get accurate information before buying products and services
What does section 9 of the FTA state?
Misleading and deceptive conduct
9. Misleading and deceptive conduct generally
No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive
What is the test used to determine whether conduct is misleading or deceptive or is likely to mislead or deceive?
Would a reasonable person in the claimant’s situation - that is with the characteristics known to the defendant or of which the defendant out to have been aware - be likely to have been mislead or deceived?
Objective.
No requirement to show intention to mislead or deceive.
What are mere puffs? Are they considered misleading or deceptive conduct?
A mere puff is an exaggerated statement that no reasonable person would believe to be true.
A mere puff is not considered misleading or deceptive conduct.
When may statements which are factually true be misleading or deceptive?
Statements which are factually true may be misleading or deceptive when they give the wrong impression, especially when another important fact is left out.
When may small print be misleading or deceptive?
Small print may be misleading or deceptive when the impression given in the main part of the advertisement is changed by the small print in a significant way.
When are statements of opinion misleading or deceptive?
Statements of opinion are misleading or deceptive when the person making them did not actually hold that opinion, or when the statement is made in such a way as to make out that it is a statement of a fact.
The latter is an issue with opinions from experts.
What is the general rule about contracting out of the FTA?
The general rule is that you cannot contract out of the FTA.
What are the three requirements that must be met for an exception to be made and to be able to contract out of the FTA
To contract out of the FTA;
1. The parties must be in trade
2. All parties must agree
3. It must be fair and reasonable to do so considering all the circumstances surrounding the agreement
Who enforces the FTA?
The Commerce Commission
