Quirk’s CFO (and an attorney), Andrew Allison, asked an interesting question on Twitter earlier today which, at first glance, may seem a little silly but raises a really interesting legal question in the context of the Consumer Protection Act:
Being one of those questions it is virtually impossible to answer in 140 characters (and impractical to answer in a series of tweets) so I thought I’d use this question as an opportunity to start the Jacobson Attorneys blog. The more I thought about Andrew’s question, the more bizarre the idea of the Consumer Protection Act’s application to shopping bags seemed to me and yet it does appear to apply, despite being disproportionately so.
Andrew’s tweet beg 3 questions (at least):
- Whether a retailer like Pick ‘n Pay is engaging in some form of direct marketing activity by offering and supplying shopping bags and whether the consumer’s right to a cooling off period applies?
- Whether a retailer like Pick ‘n Pay is engaging in some form of direct marketing activity by offering and supplying shopping bags and whether the implied quality warranty provisions apply?
- Whether a retailer like Pick ‘n Pay is engaging in some form of direct marketing activity by offering and supplying shopping bags and whether the Consumer Protection Act’s provisions dealing with direct marketing apply to shopping bag supply?
Andrew seems to be asking the first question but the other 2 are equally interesting.
Question 1 – cooling off period
Section 16 of the Consumer Protection Act gives consumers a right to a cooling off period where they are sold something as a result of a direct marketing campaign. Cashiers at a till offer consumers a shopping bag for their purchases and those shopping bags are typically branded and intended to form part of the retailer’s public marketing campaign. So what is “direct marketing” for the purposes of the Consumer Protection Act? According to the Act –
“direct marketing” means to approach a person, either in person or by mail or electronic communication, for the direct or indirect purpose of—
(a) promoting or offering to supply, in the ordinary course of business, any goods or services to the person; or
(b) requesting the person to make a donation of any kind for any reason;
The next question, of course, is what “goods” are in terms of the Consumer Protection Act –
“goods” includes —
(a) anything marketed for human consumption;
(b) any tangible object not otherwise contemplated in paragraph (a), including any medium on which anything is or may be written or encoded;
(c) any literature, music, photograph, motion picture, game, information, data, software, code or other intangible product written or encoded on any medium, or a licence to use any such intangible product;
(d) a legal interest in land or any other immovable property, other than an interest that falls within the definition of ‘service’ in this section; and
(e) gas, water and electricity;
Strictly speaking the cashier at the till is offering to supply a shopping bag, a good, in the ordinary course of the retailer’s business and is doing so in person so that checkbox seems to be ticked. Section 16 of the Consumer Protection Act states that “[a] consumer may rescind a transaction resulting from any direct marketing without reason or penalty, by notice to the supplier in writing, or another recorded manner and form, within five business days after the later of the date on which” the consumer concluded the sale agreement or received delivery of the goods in question. In the context of a shopping bag purchase, those two events typically occur at the same time.
The Consumer Protection Act does seem to say that a consumer can return shopping bags as goods on notice to the retailer concerned. The question is whether consumers would be prepared to do this. Another question is how this will impact on retailers’ obligation to charge for plastic shopping bags and the intended purpose of those proceeds from the sale of those shopping bags, namely to fund ways to reduce the environmental impact of these plastic shopping bags?
Question 2 – implied warranty
Section 56 of the Consumer Protection Act deals with an implied warranty of quality. This means that irrespective of the retailer’s terms and conditions, the Consumer Protection Act implies a warranty from the retailer that the goods and services it supplies are of a certain quality or meet a set of standards set out in section 55 of the Act. If the products or goods fall short of this standard then the consumer may return the goods, exchange them or have them repaired within a 6 month period. The options are a little different with services, as are the time frames, given the nature of services as opposed to goods but this is the general idea. Given that consumers are required to purchase shopping bags and they prove defective, consumers may conceivably invoke this provision and seek a refund, replacement or, notionally, repair up to 6 months after purchasing the shopping bags.
I can certainly see a consumer returning to a store after a poorly packed bag filled with tinned goods breaks under the pressure of the load and insisting on replacement bags to carry the goods. Beyond that the scenarios where shopping bags could allegedly fail to meet the test of this implied warranty could test the purpose of a shopping bag and its intended uses.
Question 3 – right to refuse the bag
This question is probably a little silly but just as valid as the previous two. If a shopping bag is branded or otherwise associated with the retailer, is the consumer entitled to opt-out of any further approaches by cashiers offering shopping bags? Section 11 of the Consumer Protection Act includes the following:
Right to restrict unwanted direct marketing
11. (1) The right of every person to privacy includes the right to—
(a) refuse to accept;
(b) require another person to discontinue; or
(c) in the case of an approach other than in person, to preemptively block,
any approach or communication to that person, if the approach or communication is primarily for the purpose of direct marketing.
While the first two options give a consumer the right to refuse an offer of a shopping bag or insist that a cashier not offer further shopping bags, does the third option give a consumer the right to opt-out of all further offers by a retailer’s cashiers to supply shopping bags? If that is how this section would apply to this scenario, how would that be enforced? Consumers are effectively anonymous to the point where they tender payment and cashiers typically offer shopping bags at first contact. Even if this is a scenario where a consumer could, theoretically, preemptively block the retailer’s direct marketing efforts, this may be practically impossible to implement in this context.
Strange applications
These 3 questions seem a little silly, granted, but they do seem to highlight the possible applications of the Consumer Protection Act, regardless of whether these applications were anticipated or not.
