Abstract
This study addresses the topic of consumer policy from an international law perspective, exploring the content and evolving meaning of the right to information in the age of fast-paced scientific and technological advancement, according to the United Nations Guidelines for Consumer Protection (“the Guidelines”), which were adopted in 1985 and last revised in 20151.
Kara D. Nottingham and Izabel Cardozo are Counsel and Assistant General Counsel, respectively, at Philip Morris International in Lausanne, Switzerland. Kara holds a JD from William & Mary School of Law in Williamsburg, Virginia (USA), and LLM in International Dispute Settlement from the Graduate Institute—University of Geneva (Switzerland). Izabel holds a law degree from the University of the State of Rio de JaneirovUERJ and a LLM in Constitutional Law from The Catholic University of Rio de Janeiro—PUC/RJ (Brazil). This paper represents the views of the authors and not necessarily the organization where they work.
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Notes
- 1.
See United Nations Guidelines on Consumer Protection (“the Guidelines”), available online at https://unctad.org/en/PublicationsLibrary/ditccplpmisc2016d1_en.pdf (last accessed on 12 March 2019).
- 2.
The international human rights framework is composed of the Universal Declaration of Human Rights (hereinafter UDHR), adopted by the United Nations General Assembly (hereinafter the UNGA) on 10 December 1948, the International Covenant on Civil and Political Rights (hereinafter the ICCPR), adopted by the UNGA on 16 December 1966, and the International Covenant on Economic, Social and Cultural Rights (hereinafter ICESCR), adopted by the UNGA on 16 December 1966, which together form the “International Bill of Human Rights”; See also, Office of the High Commissioner for Human Rights [1].
- 3.
The European Convention on Human Rights (hereinafter the ECHR) was opened for signature on 4 November 1950 and came into force on 3 September 1953. The African Charter of Human and People’s Rights was adopted on 27 June 1981 and entered into force on 21 October 1986. The American Convention on Human Rights was signed on 22 November 1969 and entered into force on 18 July 18 1978.
- 4.
European Court of Human Rights, The Sunday Times v. The United Kingdom, Case No. 6538/74, 26 April 1979, at para. 66.
- 5.
European Court of Human Rights, Magyr Helsinki Bizottsag v. Hungary, Case No. 18030/11, 8 November 2016, at para. 161.
- 6.
See African Commission on Human and People’s Rights, Article 19 v. Eritrea, Comm. No. 257/03, 30 May 2007.
- 7.
See Report of the Special Rapporteur on the Promotion and Protection of Freedom of Expression, A/71/373, 6 September 2016, http://www.un.org/ga/search/view_doc.asp?symbol=A/71/373 (last accessed on 12 April 2019). The Human Rights Council and the General Assembly have referred to freedom of expression as one of the essential foundations of a democratic society and one of the basic conditions for its progress and development.
- 8.
The African Court of Human and People’s Rights, Lohé Issa Konaté v. The Republic of Burkina Faso, App. No. 004/2013, 5 December 2014, at para. 133. The case is in the context of criminalization for defamation.
- 9.
Inter-American Court of Human Rights, Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil, App. No. 004/2013, 24 November 2010, at paras. 197–202.
- 10.
Sakellari [2].
- 11.
Taylor et al. [3].
- 12.
The International Covenant on Civil and Political Rights, Article 17: (“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.”).
- 13.
Gumbis et al. [4].
- 14.
Beauchamp and Childress [5].
- 15.
Coggon and Miola [6].
- 16.
Kennedy [7].
- 17.
See The Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices (hereinafter the Set Principles), https://unctad.org/en/docs/tdrbpconf10r2.en.pdf (last accessed on 8 April 2019). Resolution 35/63 was adopted by the United Nations General Assembly at its thirty-fifth session on 5 December 1980, whereby the Set principles were pronounced. One of the stated objectives of the Set Principles is “to attain greater efficiency in international trade and development, (…), such as through: (…) (c) encouragement of innovation.”.
- 18.
See United Nations Conference on Trade and Development explanation of the Set Principles, https://unctad.org/en/Pages/DITC/CompetitionLaw/The-United-Nations-Set-of-Principles-on-Competition.aspx (last accessed on 8 April 2019). The Set Principles (i) provide a set of equitable rules for the control of anti-competitive practices; (ii) recognize the development dimension of competition law and policy; and (iii) provide a framework for international cooperation and exchange of best practices.
- 19.
As a general rule, guidelines and declarations issued by international organizations assist countries in implementing their national laws. These soft law documents do not trigger binding obligations on member states. Nevertheless, guidelines provide useful information and guidance for member states to interpret and implement laws in their national jurisdictions.
- 20.
Wei [8].
- 21.
Benöhr and Micklitz [9].
- 22.
Harland [10].
- 23.
Benöhr, supra note 21 at p. 25.
- 24.
Wei, supra note 20.
- 25.
Id.
- 26.
The Handbook, supra note 21. Gael Pearson, The UNGCP Guidelines: Some Comments, at pp. 40–41.
- 27.
The Guidelines, supra note 1, at §III(5)(e). (“4. Member States should develop, strengthen or maintain a strong consumer protection policy, taking into account the guidelines set out below and relevant international agreements. In so doing, each Member State must set its own priorities for the protection of consumers in accordance with the economic, social and environmental circumstances of the country and the needs of its population, and bearing in mind the costs and benefits of proposed measures. 5. The legitimate needs which the guidelines are intended to meet are the following: […] (e) Access by consumers to adequate information to enable them to make informed choices according to their individual wishes and needs.”).
- 28.
Supra, note 26.
- 29.
United Nations General Assembly Resolution on Consumer Protection, A/RES/39/248, 16 April 1985, https://www.un.org/documents/ga/res/39/a39r248.htm (last accessed on 8 April 2019). (“Section IIIA(10): Appropriate policies should ensure that goods produced by manufacturers are safe for either intended or normally foreseeable use. Those responsible for bringing goods to the market, in particular suppliers, exporters, importers, retailers and the linked (hereinafter referred to as ‘distributors’) should ensure that while in their care these goods are not rendered unsafe through improper handling or storage that while in their care they do not become hazardous through improper handling or storage. Consumers should be instructed in the proper use of goods and should be informed of the risks involved in intended or normally foreseeable use. Vital safety information should be conveyed to consumers by internationally understandable principles wherever possible. Section IIIB(20): Promotional marketing and sales practices should be guided by the principle of fair treatment of consumers and should meet legal requirements. This requires the provision of the information necessary to enable consumers to take informed and independent decisions, as well as measures to ensure that the information provided is accurate. Section IIIB(22): Governments should, within their own national context, encourage the formulation and implementation by business, in co-operation with consumer organizations, of codes of marketing and other business practices to ensure adequate consumer protection. Voluntary agreements may also be established jointly by business, consumer organizations and other interested parties. These codes should receive adequate publicity. Section IIIF(35): Business should, where appropriate, undertake or participate in factual and relevant consumer education and information programmes.”).
- 30.
Department of Economic and Social Affairs [11]. (“Section II(7) All enterprises should obey the relevant laws and regulations of the countries in which they do business. They should also conform to the appropriate provisions of international standards for consumer protection to which the competent authorities of the country in question have agreed (Hereinafter references to international standards in the guidelines should be viewed in the context of this paragraph.)”).
- 31.
The Guidelines, supra note 1, at §IV.
- 32.
Id. at §§42 and 46.
- 33.
Oxana Gassy-Wright (Under the Direction of Peter J. Spiro), Commercial Speech in the United States and Europe, University of Georgia School of Law LLM Theses and Essays, at p. 15, https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1016&context=stu_llm (last accessed on 12 April 2019); See also Securities and Exchange Commission v. Wall Street Publishing Institute Inc. dba Stock Market Magazine, 851 F.2d 365 (U.S.C.A. DC Cir. 1988); See also Central Hudson Gas & Electric Corp. v. Public Service Commission (hereinafter Central Hudson), 447 U.S. 557 (1980).
- 34.
See US v. Caronia, 703 F.3d 149, 163, 168–169 (2d Cir. 2012).
- 35.
Gassy-Wright, supra note 33, at p. 5.
- 36.
Id., at p. 1.
- 37.
Id., at p. 15.
- 38.
See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc., 425 U.S. 748 (1976); See also ERIC BARENDT, FREEDOM OF SPEECH, Oxford University Press, (2d. ed. 2005), at pp. 400–401. In the course of the decision the Court provided three reasons why commercial speech should be entitled to First amendment protections. (“The first focused on the interests of consumers in the free flow of commercial information: ‘[T]hat interest may be as keen, if not keener by far, than his interest in the day's most urgent political debate.' Secondly, society has a strong interest in the unimpeded flow of commercial information, partly because that information may have a public interest component, but more generally because the flow is important in enabling consumers to make informed choices, which cumulatively are essential to the working of a free-enterprise economy. Thirdly, for the state to justify its ban on the publication of drug prices with the argument that otherwise consumers would be attracted to go to low-cost, low-quality pharmacist is unacceptable paternalism.”).
- 39.
Gassy-Wright, supra, note 33, at p. 5.
- 40.
Central Hudson, supra note 33.
- 41.
Id., at 566.
- 42.
44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).
- 43.
Id., at 503.
- 44.
See Bigelow v. Virginia, 421 US 809 (1975); See also Batra [12].
- 45.
Caronia, supra note 34. (“[O]ff-label drug usage is not unlawful, and the FDA’s drug approval process generally contemplates that approved drugs will be used in off-label ways. In effect, even if pharmaceutical manufacturers are barred from off-label promotion, physicians can prescribe, and patients can use, drugs for off-label purposes. As off-label drug use itself is not prohibited, it does not follow that prohibiting the truthful promotion of off-label drug usage by a particular class of speakers would directly further the government’s goals of preserving the efficacy and integrity of the FDA’s drug approval process and reducing patient exposure to unsafe and ineffective drugs.”).
- 46.
Id.
- 47.
The Canadian Charter of Rights and Freedoms §2(b). (“Everyone has the following fundamental freedoms: (…) (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”).
- 48.
Supreme Court of Canada, The Attorney General of Quebec v. La Chaussure Brown's Inc., Valerie Ford, McKenna Inc., Nettoyeur et Tailleur Masson Inc. and La Compagnie de Fromage Nationale Ltée A.G. (hereinafter Ford v. Quebec), Docket No. 20307, 2 SCR 712 (1988).
- 49.
Id., at para. 59.
- 50.
Supreme Court of Canada, The Attorney General of Quebec v. Irwin Toy Limited, Docket No. 20074, 1 S.C.R. 927 (1989).
- 51.
Id. (“We have already discussed the nature of the principles and values underlying the vigilant protection of free expression in a society such as ours. They were also discussed by the Court in Ford (at pp. 765–67), and can be summarized as follows: (1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfilment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed.”).
- 52.
- 53.
Id.
- 54.
BverfG, 1 BvR 166/89 (1993)—Nuklearmedizin im Briefkopt, and subsequently BVerfG, 1 BvR 1147/01 (2002)—Bezeichnung von Klinik-Arzten als Spezialisten in Faltblatt.
- 55.
BVerfG, 1 BvR 2041/02 (2007), Pharmakartell.
- 56.
BVerfG, 2 BvR 1915/91(1997)—Warnungen auf Tabakerzeugnissen, at para. 46.
- 57.
BGH, judgment of 15 February 1996—I ZR 9/94 (juris)—Der meistverkaufte Europas, para. 28 = GRUR 1996, 910.
- 58.
District Court Kiel, judgment of 10 November 1998- 16 O 19/98- Patienteninformationsdienst.
- 59.
Id. at para. 39.
- 60.
The Convention, supra, note 2 at 10§2. (“The exercise of these freedoms [freedom to hold opinions and to receive and impart information and ideas], since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”).
- 61.
The doctrine of “margin of appreciation” allows the governments of the Party States some discretion, subject to the European Court of Human Rights supervision, in balancing freedom of speech with conflicting interests such as reputation, privacy, and the right to a fair trial. See, e.g., European Court of Human Rights, Church of Scientology v. Sweden, Case No. 7805/77, 5 May 1979. (“The level of protection must be less than that accorded to the expression of ‘political’ ideas, in the broadest sense, with which the values underpinning the concept of freedom of expression in the Convention are chiefly concerned.”).
- 62.
European Court of Human Rights, Casado Coca v. Spain, Case No. 15450/89, 24 February 1994, at paras. 35–51.
- 63.
Id. at paras. 35, 49, and 51. (“For the citizen, advertising is a means of discovering the characteristics of services and goods offered to him. Nevertheless, it may sometimes be restricted, especially to prevent unfair competition and untruthful or misleading advertising. In some contexts, the publication of even objective, truthful advertisements might be restricted in order to ensure respect for the rights of others or owing to the special circumstances of particular business activities and professions. Any such restrictions must, however, be closely scrutinized by the Court, which must weigh the requirements of those particular features against the advertising in question; to this end, the Court must look at the impugned penalty in the light of the case as a whole.” […]“The Court would first point out that Article 10 guarantees freedom of expression to ‘everyone’. No distinction is made in it according to whether the type of aim pursued is profit-making or not. […]“In the Commission’s view, banning practically all advertising by members of the Bar appeared to be excessive and scarcely compatible with the right to freedom of expression, which includes the freedom to impart information and its corollary, the right to receive it. The applicant’s notice set out particulars that were wholly neutral (his name, occupation and business address and telephone number) and did not contain information that was untrue or offensive to fellow members of the Bar. He was therefore entitled to impart that information, just as his potential clients were entitled to receive it.”).
- 64.
Johnson and Ho Youm [15].
- 65.
See Court of Justice of the European Union, GB-INNO-BM v. Confederation du Commerce Luxembourgeois, Case No. 362/88, E.C.R.I-667, (1990).
- 66.
Id., at paras. 14, 15, and 18. (“The question thus arises whether national legislation which prevents the consumer from having access to certain information may be justified in the interest of consumer protection. It should be observed first of all that Community policy on the subject establishes a close link between protecting the consumer and providing the consumer with information. […] The existence of a link between protection and information for consumers is explained in the introduction to the second programme [of the European Economic Community for a consumer protection and information policy]. There it is stressed that measures taken or scheduled in accordance with the preliminary programme contribute towards improving the consumer's situation by protecting his health, his safety and his economic interest, by providing him with appropriate information and education, and by giving him a voice in decisions which involve him. […] It follows from the foregoing that under Community law concerning consumer protection the provision of information to the consumer is considered one of the principal requirements. Thus Article 30 cannot be interpreted as meaning that national legislation which denies the consumer access to certain kinds of information may be justified by mandatory requirements concerning consumer protection.).
- 67.
Court of Justice of the European Union, Neptune Distribution SNC v. Ministre de l’Économie et des Finances (Minister for Economic Affairs and Finance), Case No. 157/14, 17 December 2015.
- 68.
Id at paras. 65 and 74. (“The need to ensure that the consumer has the most accurate and transparent information possible concerning the characteristics of goods is closely related to the protection of human health and is a question of general interest […] which may justify limitations on the freedom of expression and information of a person carrying on a business or his freedom to conduct a business.).” (“Since the freedom of expression and information laid down in Article 11 of the Charter has, as is clear from Article 52(3) thereof and the Explanations Relating to the Charter as regards Article 11, the same meaning and scope as the freedom guaranteed by the ECHR, it must be held that that freedom covers the use by a business, on packaging, labels and in advertising for natural mineral waters, of claims and indications referring to the sodium or salt content of such waters.”).
- 69.
Court of Justice of the European Union, MSD Sharp & Dohme GmbH, Case No. 316/09, 5 May 2011, at para. 32.
- 70.
Id., at para. 48. (“Having regard to all of the foregoing, the answer to the question referred is that Article 88(1)(a) of Directive 2001/83 must be interpreted as meaning that it does not prohibit the dissemination on a website, by a pharmaceutical undertaking, of information relating to medicinal products available only on medical prescription, where that information is accessible on the website only to someone who seeks to obtain it and that dissemination consists solely in the faithful reproduction of the packaging of the medicinal product, in accordance with Article 62 of that directive, and in the literal and complete reproduction of the package leaflet or the summary of the product’s characteristics, which have been approved by the authorities with competence in relation to medicinal products. On the other hand, the dissemination, on such a website, of information relating to a medicinal product which has been selected or rewritten by the manufacturer, which can be explained only by an advertising purpose, is prohibited. It is for the referring court to determine whether and to what extent the activities at issue in the main proceedings constitute advertising within the meaning of that directive.”).
- 71.
See Court of Justice of the European Union, Republic of Austria v. Commission, in joined Case Nos. C-421/00, C-426/00 and C-16/01, 23 January 2003. (“37. While Article 2(1) of Directive 79/112 prohibits, first, all statements relating to the preventing, treating and curing of a human disease, even if they are not liable to mislead the purchaser, and, second, misleading statements relating to health, it is clear that the protection of public health, assuming that risks relating thereto are nevertheless conceivable in a particular situation, cannot justify a system as restrictive of the free movement of goods as that which results from a procedure of prior authorisation for all health-related information on the labelling of foodstuffs, including those which are manufactured lawfully in other Member States and are in free circulation. 38. Less restrictive measures exist for the prevention of such residual risks to health, such as, for example, an obligation on the manufacturer or distributor of the product in question, in the event of any uncertainty, to furnish evidence of the accuracy of the facts mentioned on the labelling (see, to that effect, Commission v. Austria, paragraph 49”).).
- 72.
Id.
- 73.
With respect to the consumer right to information, see Article 6, items II and III, of the Brazilian Consumer Protection Code: “The following are basic consumer rights: […] II - education and information about the adequate level of consumption for products and services, ensuring freedom of choice and equality in hiring processes; III - adequate and clear information about different products and services, with correct specification of quantity, characteristics, composition, quality, price and taxes, as well as the risks presented.”.
- 74.
Article 5(iv) of the Brazilian Constitution (Freedom of Thought).
- 75.
Article 5(ix) of the Brazilian Constitution (Freedom of Expression).
- 76.
Article 5(xiv) of the Brazilian Constitution (Access to Information).
- 77.
See Superior Court of Justice of Brazil, Special Appeal No. 586316-MG, 17 April 2007. (“The duty of information requires a positive and active behavior, (…) Positive and active behavior means that the consumer protection microsystem is not compatible with half-information, semi-information, proto-information or partial information, regardless of the term being chosen. Information is either given in full, or is not information in the legal (and practical) sense attributed to it by the CDC. (…) If the requirements of the special legislation that governs a specific product or service are not sufficient to properly inform the consumer, it is up to the manufacturer—the most knowledgeable about the products and services on sale—to offer complementary information.(…) Only the well informed consumer may in fact fully enjoy the economic benefits of the product or service it has been provided, as well as to adequately protect itself from risks arising thereof. (…) Strictly speaking, the obligation to inform, nowadays has a true autonomous nature (…) (unofficial translation)),” https://stj.jusbrasil.com.br/jurisprudencia/4092403/recurso-especial-resp-586316 (last accessed on 15 April 2019).
- 78.
Id.
- 79.
Ippolito [16].
- 80.
Id.
- 81.
See Publication Before the Department of Health and Human Services Food and Drug Administration, in the Matter of Request for Comments on First Amendment Issues, Docket No. 02 N-0209, Comments of the Staff of the Bureau of Economics, the Bureau of Consumer Protection, and the Office of Policy Planning of the Federal Trade Commission, 13 September 2002, https://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-staff-comment-food-and-drug-administration-concerning-first-amendment-issues/fdatextversion.pdf (last accessed on 12 April 2019).
- 82.
Ippolito, supra note 79.
- 83.
Ratnayake et al. [17].
- 84.
Id. (“Among the major grocery and restaurant food products in Canada that might contain TFA in 2005–2007, nearly half
(42%) contained X5% TFA on initial assessment. Many were subsequently discontinued or reformulated to reduce TFA; in those assessed more than once, nearly three-quarters had undergone reformulation, with average reduction to p2% TFA. Following reformulation, only one product had unchanged content of cis unsaturated fats; all others had increased cis unsaturated fats, most with absolute increase X10% of fatty acids and half with absolute increase X20%. The total fat content was generally unchanged.(…)[T]his first large-scale contemporary assessment of TFA contents and reformulations suggests that, at least in industrialized nations with food labeling, rather than replacing TFA with SFA or increasing total fat content, food manufacturers/restaurants are generally taking advantage of costs and efforts of reformulation as an opportunity to not only reduce TFA but also increase the content of cis unsaturated fats. Such reformulation may provide additional health benefits beyond those due to lower TFA content. Most of the assessed food manufacturers and restaurants have global reach, and these findings should encourage food and restaurant industries in other regions that it is possible to reformulate foods to both eliminate industrial TFA and improve overall fatty acid composition.”).
- 85.
Supra, note 79, at p. 440.
- 86.
United States Department of Agriculture [18].
- 87.
Id.
- 88.
Ippolito, supra note 79, at p. 433.
- 89.
Id., at pp. 438–439.
- 90.
- 91.
See United Nations Economic Commission for Europe (UNECE) Press Release [21].
- 92.
See Engadget [22].
- 93.
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Nottingham, K.D., Cardozo, I. (2020). The Role of International Consumer Policy in Fostering Innovation and Empowering Consumers to Make Informed Choices. In: Wei, D., Nehf, J.P., Marques, C.L. (eds) Innovation and the Transformation of Consumer Law. Springer, Singapore. https://doi.org/10.1007/978-981-15-8948-5_28
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