International Law and Consumer Protection

Antonella Corradi earned a degree in Law from the University of Rome, “La Sapienza” (June 1991). She works at the Ministry of Culture of Italy. She has written many articles, including for example, co-authoring a 2024 article titled The Regulatory Landscape of Biobanks in Europe: From Accreditation to Intellectual Property. She has also co-authored an article titled Biobank on Balance between Private Property and Commons: Patents or Open Data Sharing?, published in JLIS in 2010. She is a statutory auditor on behalf of the Ministry of Culture of Italy.

1. History of Consumer Protection

The idea of a consumer as a citizen, and thus as a juridical subject, is a relatively new concept. Until the nineteenth century, consumers directed their resources towards necessary products with attention to quality as a secondary importance. The first country in which consumerism had established itself early on was the United States, where, based on the protests of the poorest strata of the American proletariat, federal regulations had been enacted. These regulations imposed a required level of authenticity in foods and medicines. Unfortunately, it was soon realized that the success was only partial. Only during the Great Depression was there enough information about products that could be used to make correct choices, and, above all, there was a widespread lack of political representation that could be used to channel protests into policies.

Then, in 1928, the Consumers Union, a very important association, was established. In Europe, the culture of consumer protection has spread only since the 1950s, when the British government and Denmark recognized the social importance of the problem and considered it necessary to offer consumers the opportunity to express themselves on issues that were previously reserved for both producers and traders by creating special protection bodies. The same measures were then adopted by other countries, such as France and Germany, as if to testify that consumer protection was spreading and thus laying the foundations for the birth of new regulations. In 1962, the United States gave birth to an official definition of consumer rights in safety. In Italy, the situation was a bit different, and only with the Directives of the European Community were important concepts affirmed. In 1975, the European Community organically reorganized the initiatives related to consumer protection, highlighting all the objectives related to the same.

The consumer constitutes the starting point of economic activities, and their role has always been valued by the development of the market. In effect, adequate consumer protection allows the economic systems to work through the consolidation of the rights of the citizens. The Old Testament mentions a form of consumer protection and so does the Code of Hammurabi, but only from a mercantile perspective. An early form of movement in defense of consumers was born in the United States, where the basis for the birth and development of monopoly and oligopolistic capitalism was started.[1]

Until the 18th century, consumers had to verify for themselves the quality of the goods they purchased, and only in the presence of gross negligence could the seller be held liable. The struggle against capitalism and food fraud started the first phase of consumerism, but it wasn’t until the third phase, in the 1950s, that we saw the involvement of the European countries. The first consumer organizations were born in Denmark in 1947 and in Great Britain in 1955, where the government created the Consumer Council to enable consumers to express themselves on issues previously reserved for producers and traders.[2] The real normative breakthrough came when the Single European Act modified the Treaty of Rome by strengthening the role of the Economic and Social Committee and attributing the powers to protect consumers to it.[3] Over the years, some important changes were made to the legislation that paved the way for a wider consumer policy. Yet, despite these additions, it still lacked a solid foundation that allowed a real consumer protection.

2. Organizations for Consumers’ Protection

The Federal Trade Commission (FTC) was created on September 26, 1914, when President Woodrow Wilson signed the Federal Trade Commission Act into law. The FTC opened its doors on March 16, 1915. The FTC’s mission is to protect consumers and promote competition. The FTC works with foreign competition and consumer protection authorities and cooperates with foreign authorities on enforcement and policy matters through formal and informal agreements.

In Europe, there are many consumer organizations. The Regulation on Consumer Protection Cooperation (CPC) is applicable in the European Economic Area. The consumer authorities of Norway, Iceland, and Liechtenstein are, therefore, authorities of the CPC Network. The International Consumer Protection and Enforcement Network is a worldwide organization involving more than forty countries; most of which are members of the Organization for Economic Cooperation and Development (OECD). The network aims to share information about cross-border commercial activities that may affect consumer interests and to encourage international cooperation among law enforcement agencies. The Organization for Economic Cooperation and Development addresses a wide range of issues relevant to consumers. The three main areas of work of the CCP are:

• Building consumer trust in the digital economy
• Having an impact on the new technologies and emerging business practices on consumers
• Examining consumer policy regimes, including the economic underpinning of consumer policy and its interaction with competition policy

The United Nations Guidelines for Consumer Protection, which were adopted in 1985 and revised in 1999, propose a list of objectives described as “legitimate needs”: right to be heard, right to information, right to safety, right to choose, right to consumer education, and the promotion of economic interests of consumers. Many of these objectives appear to have their origins in human rights, such as the right to safety, for instance, which echoes the Universal Declaration of Human Rights.

The Southern African Development Community (SADC) is a regional economic community comprising fifteen member states: Angola, Botswana, Democratic Republic of Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia, and Zimbabwe. Established in 1992, SADC is committed to regional integration and poverty eradication within Southern Africa through economic development and ensuring peace and security. The SADC sets challenges for the consumers and, similarly to other regions in Africa, the increased liberalization of exchanges and the opening of trade borders put the SADC markets under particular stress. The SADC region has another challenge: limited access to justice, which makes it long, difficult, costly, and sometimes just plain impossible for consumers to exercise their rights in case of abuse.

3. Legislation on Consumer Protection

A turning point in this direction was the Maastricht Treaty, signed on February 7, 1992, and ratified by Law no. 454 of November 3, 1992, which transformed the European Community into the European Union. This legislation dedicated a specific title to consumer protection, giving the new structure a specific expertise. It ensured a remarkably high degree of protection, in addition to actions of support and integration efforts implemented by the Member States, both for the protection of health and for the consumer’s economic interests and ensured adequate information. From the 1990s, the European Commission began to develop three-year plans to harmonize the different laws.[4]

One of the focal points consisted of one share of information and education to counterbalance the legislative measures. The plan proved to be interesting from the point of view of legislation, although it did not produce positive results because of the difficulty of “transposition and subsequent application of the same laws in the Member States.”

The second three-year plan, developed in 1993-1995, was set out to improve the information given to consumers and to put them in a position to make rational choices. It also sought to consolidate the activities of consultation to enhance the role of the consumer organizations. This action was aimed primarily at ensuring the effectiveness of consumer rights by facilitating access to justice and alternative dispute resolution. The following plan, developed in 1996-1997, was intended to “train” the consumers so that they could better address the technological changes of modern times.

This plan gave the countries of Central and Eastern Europe the technical and legal assistance to protect the interests of consumers and implement an effective policy towards them, while also creating an appropriate strategy for a new consumer policy. The first forms in which this protection was fulfilled were developed in Italy and other European countries at the same time. For this purpose, the National Union of Consumers was created, which immediately proved itself to be an important cultural development.

In the early ‘90s, the Movement of Consumers grew in importance to the point that Adiconsum, created by a union body, quickly gained a prominent position in the field of consumer protection.

4. European Legislation

However, the individual associations remained weak until, in 1989, the National Consumers and Users Association was created, which was attended by nine associations. Consumer protection was still an important objective for the European Community, and this is also confirmed by Communication no. 531. On October 2, 2001, a green paper of the European Commission was published to launch a public consultation to decide the best way to regulate the field of unfair commercial practices. This act draws attention to the need to reform European consumer law based on a framework directive able to harmonize the rules of fair commercial practices between businesses and consumers.

In Italy, consumer protection, broadly speaking, was born at the end of the 1980s to guarantee the health of the final consumer. The Presidential Decree of May 24, 1998, n. 244 implemented the established liability on the part of the producer for any damage caused by defects in their products.

The Legislative Decree 174/95, in compliance with European legislation, established that the right of withdrawal can also be exercised within thirty days from the signing of a life insurance policy. In Italy, the rules on consumer protection were placed in special laws or the Civil Code for what concerns unfair terms or after-sales guarantees.

The purpose of this green paper is to launch an extensive public consultation on the future direction of EU consumer protection. To stimulate a well-informed debate, it sets out an analysis of the current situation and possible options for the future.[5]

The EU legislation, which does not have consumer protection as its primary purpose, provides for some consumer protection or regulates the power of national authorities to introduce consumer protection regulations. For example, the e-commerce Directive 2000/31/EEC (in force: This act has been changed. Current consolidated version: 17/02/2024) of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce in the internal market, cover advertising and marketing by information society service providers. There is also the Council Directive 89/552/EEC of October 3, 1989 (no longer in force) on the coordination of provisions laid down by law, regulation, or administrative action in Member States concerning the pursuit of television broadcasting activities; Directives 97/36/EC (no longer in force) and 2007/65/EC (no longer in force), both amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulations, or administrative action in Member States concerning the pursuit of television broadcasting activities. It provides uniform high-level protection, common definitions, and clear enforcement requirements.6

In Germany, the rules were included in the new Civil Code, while in the Catalonia rules, they were inserted into a special code that had to be coordinated with the Civil Code. In Italy, Law 52 of 1996, in the implementation of the Community Law of 1991, was introduced in the Civil Code art. 1469 bis, regarding unfair clauses towards consumers. The Consumer Code in Italy came into force on 23 October 2005 and has been a fundamental body of law for the protection of consumer rights; it improved the rules on the fairness of competitive practices as well as those on information.

The legislative decree n. 21 of 2014 carried out a renovation of the Consumer Code, replacing art. 45 with art. 67. With this law, the consumer was at the center of the market and was guaranteed his individual and collective rights. More pre-contractual information was established for consumers, and this was applied especially to contracts signed outside of the business premises.

The right to reconsider is among the major changes introduced by this law; it can be exercised within a broader term than the current ten to fourteen days. Not only that, but if the consumer has not been informed of their right to change their mind, the withdrawal period is extended from the current six–ninety-day period to up to twelve months after the signing of the contract or the delivery of the goods. In case of withdrawal, the seller has fewer days to return the sum paid by the consumer, but the latter will have more time to return the goods.

Another important change concerns the prohibition of increasing the cost of the goods purchased with credit or debit cards. A similar ban is expected for telephone charges on dedicated lines that are made available to the consumer by the seller in case of direct or distance sales.

In 2015, the Consumer Code was further updated with the Legislative Decree 130 of 6 August 2015, implementing Directive 2013/11/EU (in force) of the European Parliament and of the Council of May 21, 2013 on the alternative dispute resolution for consumer disputes and amending Regulation (EC) No. 2006/2004 (no longer in force) and Directive 2009/22/EC (no longer in force)(Directive on consumer ADR), which in Part V introduced Title II-bis concerning the new discipline relating to extra-judicial resolution of consumer disputes (from Article 141 to Article 141-decies).

The Consumer Code has been updated with the changes made by law on 16 December 2024.

In England, the legislature broke away from the decisions of the courts to create legislation aimed at a more careful and precise regulation of consumer contracts. The legislation to protect consumers is generally called Consumer Law and is one of the most complex existing regulatory frameworks.

Coronavirus has put in place the need to reflect on a new definition of the current contractual remedies to find a balance between the right of consumers in case they are able to give up the purchase of goods and services to protect the primary right to health and the rights of companies in case they are forced to issue refunds. In this case, the rules that apply require that the consumer who sees the event cancelled due to the health emergency can exercise the right to have the amount paid or part of the cost of the subscription or ticket purchased. Considering the emergency we are experiencing, it is necessary to rethink the protection of consumers or contractors by paying special attention to businesses, users, and consumers.

All this suggests a horizon of change in which good expenditure, postponement of payments, the possibility of choosing new conditions for time and place of service, and a new definition of fulfillment in the presence of unpredictable circumstances are just some of the areas of contract law on which to intervene.

The continuous development of consumer law considering globalization leads to the need for the internationalization of the consumer. If the move towards an international dimension of consumer law occurs, this should make us reflect on the minimum consumer protection standard that is accepted and recognized globally. Moreover, it is the development of cooperation rather than the harmonization of substantial consumer law that should be considered as the prerequisite to effective consumer protection. Particularly because the law is also crossing national borders.

The first is certainly what constitutes a reference point for consumer protection, which is also accepted in every jurisdiction. It is thanks to the internalization that some operators, such as Amazon, have over time had a remarkable development.

The law has also had to come to terms with these realities. An important role in this area has been played by some directives, such as Directive 93/13/EEC (in force) of April 5, 1993, concerning unfair terms in contracts concluded with consumers. It is not the first time that the European Parliament has been involved in this debate. It is also important to note that there is a need for a more comprehensive picture of the problem. There is the Directive 2011/83/EU (in force: This act has been changed. Current consolidated version: 28/05/2022 of October 25, 2011 on consumer rights, amending Directive 1999/44/EC (no longer in force) of the European Parliament and of the Council, which repeals Directive 85/577/EC (no longer in force) of the Council and the Directive 97/7/EC (no longer in force) of the European Parliament and the Council). Sanctions are, however, the focal point of the reform and consist of requiring member states to take all necessary measures to ensure that the Directive comes into force in the next twenty days, so states will not be able to review protection until 2023.

Also, at the European level, on 17 January 2020, the new Regulation on Cooperation Between National Authorities Responsible for Consumer Legislation came into force. The new regulation repeals and replaces the EC Regulation 2006/2004 (no longer in force), by which the European Community established a network of Consumer Protection Cooperation (CPC) authorities to facilitate more effective coordination between the different authorities.

With the introduction of the legislation, the powers of the component national authorities, which, in the case of breaches of regulation, require information from private entities, were created. In addition, the same authorities can make spot purchases to assess the most advantageous condition and order the removal of content.

Published in the Official Gazette No. 409 L of December 4, 2020, EU Directive 2000/1828 (In force: This act has been changed. Current consolidated version: 13/12/2024) of November 25, 2020 relating to representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EEC (no longer in force) concerns representative actions to protect the collective interests of consumers, was published. The purpose of this directive is to ensure that all member states are offered the possibility of applying a procedure for representative actions aimed at protecting the collective interests of consumers and their access to justice. The Directive enters into force on 24 December 2020, and the Member States will have until 25 December 2022 to adopt the legislative provisions necessary to comply with this Directive and then apply them on 25 June 2023. The main purpose of the directive is to ensure a high level of consumer protection by harmonizing certain aspects of the laws of the member states, but also to improve consumers’ access to justice.

The new EU Directive 2024/825 was recently published in the Official Journal of the EU. The aim is to guarantee consumers greater protection against unfair commercial practices and strengthen the ecological transition through better information. Moreover, the document defines the unfair business-to-consumer commercial practices that are prohibited in the EU; it ensures the same level of protection to all consumers regardless of the place of purchase or sale within the EU; and it applies to “any act or omission directly related to the promotion, sale or supply of a product by a trader to consumers, protecting the economic interests of consumers before, during and after a commercial transaction has taken place.”

5. United States Legislation

In the American legislation, as in the English one from which it is inspired, consumer protection is implemented through a system of rules and case law as well as administrative controls operated from offices established ad hoc. In the United States, there is no durability requirement for product warranties, just as there is no warranty requirement for products sold. Commercially, therefore, no consumer will buy products for sale without a warranty or with a warranty that is too limited. A manufacturer offering a product warranty will, in most cases, offer written warranties on which important elements must be included.

However, the need to provide adequate protection to consumers has been highlighted in the United States. Over the years, the activity of American legislators, in collaboration with various agencies and other institutions, has created a series of legislative acts aimed at establishing the primacy of the United States in the field of consumer protection.

A relevant example of consumer protection in America is represented by the Pure Food and Drug Act of 1906, which introduced relevant regulations concerning food safety and led to the creation of the government agency FDA (Food and Drug Administration). The international panorama regarding consumer protection is characterized by a set of laws, regulations, and standards as well as international conventions.

An example worthy of mention is represented by the United Nations Convention on Contracts for the International Sale of Goods, which had the aim of regulating international conventions, establishing general principles that regulate the sale of goods between adhering countries.

It is essential to underline that each jurisdiction has its regulations; in fact, while in the United States, the consumer assumes the responsibility of knowing the details of a contract, and in the European Union, we are faced with a more targeted approach to consumer rights, with rigorous rules regarding the conformity of goods and services.7

Not only that, but, for example, while the European Union has adopted legislation on the protection of personal data through the GDPR, in the United States, a federal regulation on data privacy is still being defined.

The need for clear and, above all, updated regulations is fundamental as jurisdictions must be able to organize themselves as best as possible to define regulations that take technological development into account. International collaboration is also essential to address the significant impact of digitalization.

An important role is given by the Economy Analysis of Law Act, which favored consumer protection by requiring the enterprise costs of defective products to be transferred to the insurer and ultimately distributed among the consumers themselves. Noteworthy is the Product Liability Law, a set of rules and principles on the direct responsibility of the company to the consumer for the manufacture and sale of products that give rise to harmful events.

Important in the United States, but now here too in the EU, is the institution of class action, which consists in the action to which the members of a group or category are entitled, like the shareholder of a company; the actor can bring an action on behalf of all other members of the class he represents. While in the U.S., the effect of the judgment is applied to every member of the class, whether they decided to participate in the trial or not; in England, unless the court decides otherwise, the judgment is binding on every person represented in the dispute but may be enforced by or against those who are not part of the trial only with the permission of the Court.

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[1] G. Alpa, “Il Diritto dei Consumatori,” Bari, 1995, p. 12.

[2] F. Silva, A. Cavaliere, “I diritti dei consumatori e l’efficienza economica, in “La tutela del consumatore tra mercato e regolamentazione,” a cura di F. Silva, Roma, 1996, p.12.

[3] Il Trattato di Roma fu sottoscritto nella capitale italiana il 25 marzo 1957 e rappresenta il momento decisivo del processo costitutivo delle Comunità Europee. I sei Paesi firmatari (Francia, Germania, Belgio, Lussemburgo e Olanda) istituirono con detto Trattato una Comunità Economica Europea (CEE) –e con altro trattato sottoscritto lo stesso giorno- la Comunità Europea dell’Energia Atomica, meglio nota come Euratom. Nel 1951 era stato sottoscritto il Trattato costitutivo della Comunità Europea del Carbone e dell’Acciaio (CECA). Quest’ultima, istituita con trattato a tempo, è cessata il 23 luglio 2002. Euratom, al contrario, resta in essere come Comunità giuridicamente autonoma dell’Unione Europea, pur condividendone le istituzioni in Bankpedia.

[4] Il piano d’azione della Commissione CE, in “Rivista critica di Diritto Privato,” II/94, p. 153.

[5] Explanatory Memorandum to COM (2001) 531 – Green paper on EU Consumer Protection.

[6] Federal Trade Commission, Consumer Protection in the United States, 2021.

[7] European Consumer Center Network, Consumer Rights in Europe: The Ultimate Guide, 2021.