CONSUMER PROTECTION ACT, 2010

Arrangement of Sections

PART I

PRELIMINARY

1. Short title.

2. Interpretation.

PART II

FAIR TRADING COMMISSION

3. Administration.

4. Functions.

5. Complaint.

6. Investigations by Commission.

7. Discontinuation of investigation.

8. Report.

9. Convening of hearings.

PART III

UNFAIR CONTRACT TERMS

10. Interpretation of this Part and Schedule.

11. Terms not individually negotiated.

12. Burden of proof.

13. Written terms to be plain and intelligible.

14. Unfair terms.

15. Assessment of unfairness.

16. Effect of unfair term.

17. Governing law.

18. Application of this Part.

PART IV

UNFAIR TRADE PRACTICES

Disclosure and information

19. Information to be in plain and understandable language.

20. Disclosure of prices of goods and services.

21. Selling above displayed price and dual pricing.

22. Product labelling and trade descriptions.

23. Liability for damage caused by goods not complying with prescribed trade description requirements.

24. Expiry dates.

25. Sales records.

26. Full cost to be stated in certain cases.

Fair and responsible marketing

27. Bait advertising.

28. Distance selling.

29. Referral selling.

Fair and honest dealing

30. Misleading or deceptive conduct.

31. Misleading or deceptive conduct in relation to goods and services.

32. False representations.

33. Inequitable conduct in consumer transactions.

34. Inequitable conduct in business transactions.

35. Offering gifts and prizes.

36. Dishonestly accepting payment.

37. Pyramid selling scheme.

Right to choose

38. Unsolicited goods or services.

PART V

FAIR VALUE, GOOD QUALITY AND SAFETY

39. Interpretation of this Part.

40. Standards for performance of services.

41. Liability for damage due to failure to perform services to required standard.

42. Warranty for unsuitable, defective and unsafe products.

43. Warranty on repaired goods.

44. Warning concerning fact and nature of risks.

45. Liability for damage caused by unsafe, unsuitable and defective goods.

46. Unidentified manufacturer.

47. Prohibition of exclusion of liability.

48. Jurisdiction and time limit for bringing action.

PART VI

CONSUMER SAFETY

49. Interpretation of this Part.

50. General safety requirement.

51. Liability for damages caused by goods not complying with general safety requirement.

52. Prohibition and warning notices.

53. Notice to produce information.

54. Compulsory recall of goods.

55. Compliance with notice.

56. Liability for loss or damage due to non-compliance.

57. Powers of Commission.

58. Voluntary recall to be notified.

59. Liability of insurer in certain cases.

PART VII

INDUSTRY CODES

60. Interpretation of this Part.

61. Contravention of industry codes.

62. Industry codes.

63. Procedure for recommending industry codes.

64. Industry codes to be consistent with purposes and policies of this Act.

65. Power of Commission to require information.

66. Binding force of industry codes.

PART VIII

PENALTIES AND REMEDIES

67. Penalties for breach of provisions of this Act.

68. Directions.

69. Offences by body corporate.

70. Enforcement of direction, order or undertaking.

PART IX

ENFORCEMENT

71. Enforcement functions of Commission.

72. Compliance notice.

73. Objection to compliance notice.

74. Interim measures.

75. Undertakings.

76. Other orders.

PART X

MISCELLANEOUS

77. Appeals.

78. Relationship with regulatory and other authorities.

79. Promotion of awareness in consumer matters.

80. Regulations.

81. Consumer Protection Act 1977 repeal.

SCHEDULE

30 of 2010.

AN ACT to protect consumers’ rights, to impose duties on producers and suppliers of goods and services, to repeal the Consumer Protection Act, 1997 and to provide for matters connected therewith.

[Date of commencement: 29th November 2010]

PART I

PRELIMINARY

1. Short title.

This Act may be cited as the Consumer Protection Act, 2010.

2. Interpretation.

(1) In this Act—

“acquire”, in relation to—

(a) goods, includes to obtain by way of gift, purchase or exchange, lease, hire or hire purchase; and

(b) services, includes to accept the rendering or performance of those services;

“advertisement” means any direct or indirect visual or oral communication transmitted by any medium, or any representation or reference written, inscribed, recorded, encoded upon or embedded within any medium by means of which a person seeks to—

(a) bring to the attention of all or part of the public—

(i) the existence or identity of a supplier; or

(ii) the existence, nature, availability, properties or advantages of any goods or services that are available for supply;

(b) promote the supply of any goods or services, or promote any cause; and

“advertise” is construed accordingly;

“business”—

(a) means the carrying on of any commercial activity for gain or reward; and

(b) includes a trade or profession and the activities of a professional or trade association or of a public body;

“Commission” means the Fair Trading Commission established under section 3(1) of the Fair Trading Commission Act;

“consumer” means a person—

(a) who acquires or offers to acquire goods otherwise than for the purpose of resale but does not include a person who acquires goods for the purpose of using them in the production or manufacture of any other goods or articles for sale;

(b) to whom a service is rendered;

“consumer goods” means goods which are ordinarily intended for private use or consumption;

“contract of employment” means a contract of service or apprenticeship, whether it is express or implied, and, if it is express, whether it is oral or in writing as set out in section 21 of the Employment Act;

“distance selling regulations” means regulations made under section 27;

“expiry date” means the date stated in relation to goods such as food, drink and medicine being the date by which they are considered unsuitable for sale or consumption;

“goods” includes substances, growing crops and things comprised in land by virtue of being attached to land, and any ship, aircraft or vehicle;

“Minister” means the Minister responsible for trade;

“personal injury” includes disease and other impairments of a person’s physical or mental condition;

“service” means a service of any description, whether industrial, trade, professional or otherwise and—

(a) includes the sale of goods where the goods are sold in conjunction with the rendering of a service; and

(b) is construed in accordance with subsection (3);

“Seychelles Bureau of Standards” means the Seychelles Bureau of Standards established by section 3 of the Seychelles Bureau of Standards Act;

“substance” means any natural or artificial substance, whether in solid, liquid or gaseous form or in the form of a vapour, and includes substances that are comprised in or mixed with other goods;

“supply” includes—

(a) in relation to goods—

(i) to supply (including re-supply) by way of sale, rent, exchange, lease, hire or hire-purchase or disposal of goods by any other means or an interest therein or a right thereto; or

(ii) to offer to sell, rent, exchange, lease, hire or otherwise dispose of such goods, right or interest;

(b) in relation to services, to provide, grant or confer services or to offer to provide, grant or confer such services otherwise than under a contract of employment; and

“supplier” shall be construed accordingly;

“trade or commerce” means trade or commerce within Seychelles or between Seychelles and a place or places outside Seychelles;

“Tribunal” means the Tribunal established under section 44(1) of the Fair Trading Commission Act.

(2) Where it is alleged in any proceeding under this Act that a person was a consumer in relation to particular goods or services, it shall be presumed, unless the contrary is proved, that the person was a consumer in relation to those goods or services.

(3) A reference in this Act to the supply of services does not include a reference to the rendering of any services under a contract of employment.

PART II

FAIR TRADING COMMISSION

3. Administration.

The Commission is responsible for the administration of this Act and shall carry out its responsibility with the objective of promoting and advancing the welfare of consumers by—

(a) the achievement and maintenance of a consumer market that is fair, accessible, efficient, sustainable and responsible for the benefit of consumers generally;

(b) reducing any disadvantages experienced by consumers, in accessing any supply of goods or services, by reason of their illiteracy, vision impairment or limited fluency in a particular language;

(c) promoting fair business practices;

(d) protecting consumers from—

(i) unconscionable, unfair, unreasonable, unjust or otherwise improper trade practices; and

(ii) misleading, unfair, deceptive or fraudulent conduct.

(e) improving consumer awareness and information, and encouraging responsible and informed consumer choice and behaviour;

(f) promoting consumer confidence empowerment and the development of a culture of consumer responsibility through education and advocacy; and

(g) providing for an accessible, efficient, harmonised, and effective system of redress for consumers.

4. Functions.

The Commission shall have such powers as are necessary to enable it to effectively carry out its responsibilities and may, in particular—

(a) initiate or receive complaints concerning alleged prohibited conduct, and deal with those complaints in accordance with this Act;

(b) investigate and evaluate complaints or alleged contraventions of this Act;

(c) issue and enforce compliance notices;

(d) accept undertakings and enforce them in accordance with section 76;

(e) conduct hearings and issue such notices, give such orders or directions in accordance with this Act;

(f) impose remedies or financial penalties;

(g) impose fees;

(h) co-operate with foreign and local authorities;

(i) monitor the consumer market in particular industries or sectors to ensure that prohibited conduct or offences are prevented, detected and prosecuted;

5. Complaint.

(1) The Commission may initiate a complaint concerning a prohibited conduct.

(2) Any person may—

(a) submit information concerning alleged prohibited conduct, in any manner or form;

(b) make a complaint concerning prohibited conduct, to the Commission.

(3) Sections 31 and 32 of the Fair Trading Commission Act apply, with such modifications and adaptations as are necessary, to a complaint submitted under subsection (2).

6. Investigations by Commission.

(1) The Commission shall investigate a complaint—

(a) initiated under section 5(1); or

(b) made under section 5(2).

(2) The Commission may, for the purposes of investigating a complaint—

(a) enter and search any premises;

(b) inspect and remove, for the purpose of making copies, any documents or extracts therefrom in the possession or control of any person; and

(c) upon completing the search authorised by a warrant, leave a receipt listing documents or extracts therefrom that are removed for the purposes of this section.

(3) Sections 34 and 35 of the Fair Trading Commission Act apply, with such modifications and adaptations as are necessary, to a search and seizure executed under this Act.

7. Discontinuation of investigation.

(1) Where the Commission, at any stage of an investigation under this Act, is of the opinion that the matter being investigated does not justify further investigation, the Commission may discontinue the investigation.

(2) Where the Commission decides to discontinue an investigation under subsection (1), it shall—

(a) within 14 days of the decision, notify the parties concerned; and

(b) within three months of such decision submit a report of the reasons for the discontinuation to the Minister.

8. Report.

Within 30 days after the conclusion of an investigation, the Chief Executive Officer of the Commission shall submit a report of the investigation to the Commission.

9. Convening of hearings.

(1) Upon receipt of a report submitted under section 8, the Commission shall convene a hearing.

(2) Part VI of the Fair Trading Commission Act, 2009, applies with such modifications and adaptations as are necessary, to a hearing convened under this Act.

PART III

UNFAIR CONTRACT TERMS

10. Interpretation of this Part and Schedule.

In this Part and the Schedule—

“consumer contract” means a contract between a supplier and a consumer where the contract is one—

(a) governed by the written laws of Seychelles or to which section 17 applies; and

(b) in which the subject-matter is consumer goods or services;

“contract term” means a term in a consumer contract, being a term that has not been individually negotiated within the meaning of section 11.

11. Terms not individually negotiated.

(1) A contract term is not individually negotiated for the purposes of this Part or the Schedule if it has been drafted in advance and the consumer was not able to influence the substance of the term.

(2) Notwithstanding that a specific contract term or any aspect of it is in fact individually negotiated, the terms of the rest of the contract are regarded as terms that have not been individually negotiated for the purposes of this Part, if an assessment of the contract overall shows that the contract is a pre-formulated standard contract.

12. Burden of proof.

It is for a supplier which claims that a contract term was individually negotiated to show that it was so negotiated.

13. Written terms to be plain and intelligible.

(1) A supplier shall ensure that a written contract term is expressed in plain, intelligible language.

(2) Where there is a doubt as to the meaning of a written contract term, the interpretation that is most favourable to the consumer shall prevail.

14. Unfair terms.

A contract term is unfair if it causes a significant imbalance in the rights of the supplier and the consumer and is to the detriment of the consumer.

15. Assessment of unfairness.

(1) In determining whether a contract term is unfair, consideration shall be given to the following—

(a) the nature of the goods or services for which the contract is concluded;

(b) all the other terms of the contract or of another contract on which the first-mentioned contract is dependent;

(c) the interests of the supplier;

(d) the interests of the particular class of consumers who are likely to adhere to the contract;

(e) all the circumstances surrounding the conclusion of the contract at the time of its conclusion.

(2) In so far as a contract term is in plain, intelligible language, the assessment of its fairness shall not relate—

(a) to the definition of the main subject-matter of the contract; or

(b) to the adequacy of the price or remuneration as against the goods or services supplied in exchange.

(3) Where it is asserted in any proceedings under this Part that a contract term is unfair, it is for the supplier to show that the contract term is not unfair.

(4) Without prejudice to the generality of subsection (1), a contract term which is described in the Schedule is unfair.

16. Effect of unfair term.

An unfair contract term is not enforceable against a consumer.

17. Governing law.

Notwithstanding any term in a consumer contract that the governing law of the contract is the law of a country other than Seychelles, or a term to the like effect, this Part shall apply to that contract.

18. Application of this Part.

(1) A term of a consumer contract, including a term that is not set out in the contract but is incorporated in the contract by a term of the contract, is void if it purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying—

(a) the application in relation to that contract of any provision of this Part; or

(b) the exercise of a right conferred by any provision of this Part.

(2) A term of a consumer contract is not to be taken as purporting to exclude, restrict or modify the application of a provision of this Part unless the term does so expressly or is inconsistent with that provision.

PART IV

UNFAIR TRADE PRACTICES

Disclosure and Information

19. Information to be in plain and understandable language.

(1) Where a person is required in terms of this Act or any other written law to produce, provide or display a notice, document or other visual representation to a consumer, that person shall produce, provide or display such notice, document or visual representation—

(a) in the form prescribed by this Act or any other written law; or

(b) in plain language, if no form has been prescribed.

(2) For the purposes of this Act, a notice, document or visual representation is in plain language if it is reasonable to conclude that an ordinary consumer of a class of persons to whom the notice, document or visual representation is intended, with average literacy skills and minimal experience as a consumer of the relevant goods or services, could be expected to understand the content, significance and import of the notice, document or visual representation without undue effort, having regard to—

(a) the context, comprehensiveness and consistency of the notice, document or visual representation;

(b) the organisation, form and style of the notice, document or visual representation;

(c) the vocabulary, usage and sentence structure of the notice, document or visual representation; and

(d) the use of any illustrations, examples, headings or other aids to reading and understanding.

(3) The Commission may publish guidelines for methods of assessing whether a notice, document or visual representation satisfies the requirements of subsection (1)(b).

20. Disclosure of prices of goods and services.

(1) Subject to subsection (2), a retailer shall not display any goods for sale without displaying to the consumer a price in relation to those goods.

(2) A retailer is not required to display a price for goods that are displayed predominantly as a form of advertisement of the supplier, or of goods or services in an area within the supplier’s premises to which the public does not ordinarily have access.

(3) A price is adequately displayed to a consumer if, in relation to any goods or services, a written indication of the price expressed in the currency of the Republic is—

(a) annexed or affixed to, written, printed, stamped or located on, or otherwise applied to the goods or to any band, ticket, covering, label, reel, shelf or other thing used in connection with the goods or on which the goods are mounted for display or exposed for sale;

(b) in any other way represented, from which it may reasonably be inferred that the price is a price applicable to the goods or services; or

(c) published in relation to the goods or services in a catalogue available to the public, if—

(i) a time is specified in the catalogue as the time after which the goods or services will not be sold or provided at that price, and that time has not passed; or

(ii) in any other case, the catalogue may reasonably be regarded as not out-of-date.

(4) In this section, price includes a unit price.

21. Selling above displayed price and dual pricing.

(1) Subject to subsections (2) to (5), a person shall not, in trade or commerce, as a supplier, require a customer to pay a price for any goods or services—

(a) higher than the displayed price in respect of those goods or services;

(b) in respect of which more than one price is displayed, at a higher than the lower or the lowest of the prices displayed.

(2) In subsection (1), a reference to a price displayed in respect to goods or services includes, in addition to prices displayed in the manner described in section 20(3)(a), (b) and (c), a reference to a price—

(a) that is used in connection with the goods and services; or

(b) that is determined on the basis of anything encoded on or in relation to the goods.

(3) Subsection (1) does not apply in respect of the price of any goods or services if the price of those goods or services is determined by any written law.

(4) Where a price displayed in respect of particular goods is written, stamped or located wholly or partly over another price, or other prices, displayed in respect of those goods, all the prices are, for the purposes of subsection (1), prices displayed in respect of the goods but if a price that was once displayed has been fully covered and obscured by a second displayed price, that second price shall be regarded as the displayed price.

(5) It is a defence to a prosecution of a person for a contravention of subsection (1) that—

(a) the contravention in respect of which the prosecution was instituted was due to the act or default of a person other than a director, employee or agent of the defendant, to an accident or to some other cause beyond the defendant’s control; and

(b) the defendant had taken all reasonable precautions and exercised due diligence to avoid the contravention.

(6) A price shall be disregarded for the purposes of this section, if—

(a) the goods in respect of which the price is displayed are duty-free goods and the price is expressed in a currency other than Seychelles currency; or

(b) the price was displayed in respect of goods outside Seychelles in relation to the supply of the goods outside Seychelles and the supplier has taken all reasonable precautions to cover and obscure that price.

(7) If in addition to displaying a price in respect of any goods or services, a supplier has advertised or displayed a placard or similar device announcing that prices are, will be or have been reduced by—

(a) a monetary value, generally or in relationship to any particular goods or services, the displayed price for the purpose of subsection (1) shall be regarded as the price immediately displayed in relation to the goods or services, minus the announced monetary reduction;

(b) a percentage value, generally or in relation to any particular goods or services, the displayed price for the purpose of subsection (1) shall be regarded as the price immediately displayed in relationship to the goods or services, minus an amount determined by multiplying that price by the percentage shown;

unless the supplier has applied two or more prices immediately to the goods or services concerned and the difference between the highest and the lowest of those applied prices is equivalent to the advertised or placarded reduction in price.

(8) In this section, “price”, includes any representation that may reasonably be inferred to be a representation of a price.

22. Product labelling and trade descriptions.

(1) For the purposes of this section, “trade description” means—

(a) any description, statement, or other direct or indirect indication, other than a trademark, as to—

(i) the number, quantity, measure, weight or gauge of any goods;

(ii) the ingredients of which any goods consist, composition, contents of any goods, or material of which any goods are made;

(iii) the mode of manufacturing, processing or producing any goods;

(iv) the name of the producer of any goods;

(v) the place or country of origin of any goods;

(vi) the design, construction, finish or packaging of the goods;

(vii) the expiry date of the goods; or

(viii) any goods being the subject of any patent, privilege or copyright; or

(b) any figure, work or mark other than a trademark, that, according to the custom of the trade, is commonly understood to be an indication of any matter referred to in paragraph (a).

(2) For the purposes of this section, a trade description is applied to goods if it is—

(a) woven in, impressed on, worked into or annexed or affixed to the goods;

(b) applied to any covering, label or reel or thing in, on, or with which the goods are packaged, or attached to the goods;

(c) displayed together with, or in proximity to, the goods in a manner likely to lead to the belief that the goods are designated or described by that description; or

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