Consumer Protection (and Overview)
Many may wonder what link exists between intellectual property and consumer protection to warrant our review of the laws relating to the latter in this series. Before we examine the link between these two areas and the relevance to intellectual property, a brief definition of the key terms is necessary.
Consumer protection is the term used to describe the series of efforts by government, organizations and individuals to assert, protect, and implement the rights of consumers. A consumer is anyone who buys or uses goods and services. According to Consumer International, a United Kingdom based international federation of consumer protection organizations, there are 8 basic rights of a consumer namely:
- The right to satisfaction of basic needs
- The right to safety
- The right to choose
- The right to be heard
- The right to redress
- The right to consumer education and
- The right to a healthy environment.
The laws which regulate the protection and enforcement of these rights are known as consumer protection laws. Any law which is designed to protect consumers from unfair trade practices, dangerous or unsatisfactory goods or educate the consumer on his rights and remedies is a consumer protection legislation.
Consumer Protection and IP
Although the connection between intellectual property and consumer protection may appear blurred, both concepts are interrelated and interconnected. Intellectual property law may be described as the body of laws which protects original ideas and creations which have been manifested and fixed in a tangible medium of expression. It covers trademarks, copyright and patents.
Consumer protection laws seek to protect consumers of products and services and this is an indirect protection of intellectual property. A clear example is in the rationale behind trademark protection. A trademark is a mark or symbol identifying or distinguishing the goods or service of one producer from those of another. The trademark stands as a mark of quality which the consumer can rely on.
In the event that the consumer is unsatisfied with the goods or services, he is assured of a medium of redressing his dissatisfaction by simply tracing the trademark to its owner. Such assurance of quality will be eroded where trademarked goods are adulterated or counterfeited. Thus by providing the consumer with a mechanism of complaint and redress, consumer protection affords the opportunity of protecting genuine goods and services from imitation and violation by third parties as well as ensuring that the producer of particular goods and services maintain the highest standards and quality at all times.
While serving as a shield to protect consumers and innocent producers of good and services, consumer protection can be used as a sword to battle counterfeiters and imitators. This has the effect of nurturing creativity and innovation which is a cardinal principle behind intellectual property law.
Consumer Protection Laws
Like many jurisdictions around the world, Nigeria has a number of consumer protection laws which we shall consider briefly. These laws include the Consumer Protection Council Act CAP C25 Laws of Federation of Nigeria 2004(CPC Act); the Standards Organisation of Nigeria Act, CAP S9 Laws of Federation of Nigeria 2004(SON Act) and the National Agency for Food and Drug Administration and Control Act CAP N1 Laws of Federation of Nigeria 2004 (NAFDAC Act). While the provisions of the CPC and SON Acts are more general in terms of their protection of consumer rights, the NAFDAC Act specifically regulates food, drugs and other related products.
The CPC Act
The CPC Act was enacted in 1992 as Decree No 66 and subsequently promulgated into the laws of the Federation of Nigeria. The Act has 33 sections and 2 subsidiary legislations. Primarily, the Act provides for the establishment of the Consumer Protection Council (the Council) and vests the Council with the following powers:
- Providing redress to consumer's complaints;
- Seeking ways of removing harmful and hazardous goods from the market;
- Organising campaigns and other activities to increase consumer awareness and
- Causing consumer goods to be tested and apply to court to prevent the circulation of hazardous products etc.
The Council began operations in 1999 and is supervised by the Federal Ministry of Trade and Investment.
The SON Act
The SON Act was enacted in 1971 as Decree No 56 but commenced in January 1970. It established the Nigeria Standards Organisation to standardize methods and products in Nigeria's industries. The name of the organisation was changed to the Standards Organisation of Nigeria (SON) in 1984 when the Decree was amended. A further amendment of the Decree occurred in 1990 granting SON the Powers to seize and confiscate manufactured goods. The Decree is now codified as an Act in the Laws of the Federation of Nigeria with 25 sections and 2 subsidiary legislations. Some of the functions of SON include:
- Testing and research to ensure that products comply with the standards set by the Standards Council of Nigeria;
- Establishment of laboratories and other facilities to perform its functions and
- Maintenance of a library containing books, publications and other materials considered appropriate in relation to standards of goods in Nigeria.
The SON Act creates offences which are punishable with fines and jail terms of between 3 - 6 months. SON stipulates and monitors the standard of all imported and manufactured products i.e. chemical and allied products, processed foods and beverages, building materials etc
The NAFDAC Act
The NAFDAC Act was promulgated in 1993 as Decree no 15 but commenced in October, 1992. It was later amended by Decree no 19 of 1999. It has 32 sections, 2 schedules and 14 subsidiary legislations. The Act established the National Agency for Food and Drug Administration and Control (NAFDAC). Prior to the establishment of NADFAC in 1993, the Food and Drug Administration and Control Department of the Federal Ministry of Health was responsible for the regulation of food and drugs in Nigeria. However, owing to the ineffectiveness of the department, NAFDAC was created as a parastatal under the Federal Ministry of Health. The main function of NAFDAC is to regulate the manufacture, importation, exportation, advertisement, distribution, sale and use of food, drugs and other related substances.
Other legislation which regulate food and drugs in Nigeria, thereby protecting the interest of consumers include:
- The Food and Drug Act no 15 of 1976 (as amended by Decree no 21 of 1999)
- The Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Decree no 25 of 1999 and
- The Drug and Relate Products (Registration Etc) Decree no 19 of 1993
Recently development in the law of consumer protection Presently, there are 2 bills before the National Assembly for the amendment of the CPC and NAFDAC Acts. These bills to among other things modify the roles of both agencies i.e. NAFDACF and CPC and bring consumer protection laws in line with internationally accepted standards. Specifically; the CPC Amendment bill proposes to codify of the rights of a consumer, battle consumer rights infringement arising from online marketing as well as provide an elaborate medium of redress. Both bills have scaled the 2nd reading at the House of Representatives. It is hoped that when passed into law, both laws will contain more precise provisions for the protection of the Nigerian consumer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.