Provincial Code of Consumers’ Right

On November 27, 2003 the Legislative Body of the Province of Buenos Aires approved the Provincial Code for the Implementation of Consumers and Users Rights (Law No 13,133, the “Code”). The Code was partly vetoed by the Executive Branch of the Province of Buenos Aires, and was published in the Official Gazette of the Province of Buenos Aires during the week of 5 to 9 January 2004.

This Code establishes the legal basis for the protection of consumers and users in the Province of Buenos Aires and regulates administrative and legal mechanisms for the implementation of the rights that are protected.

In addition to regulating aspects of Law No 24,240 (the Law on Consumer Protection) within the Province of Buenos Aires, the Code introduces various novel matters.

1. Programs and controls

The Code lays down the incorporation in official learning programs of consumer education elements, seeking to encourage sustainable consumption and discourage consumption of tobacco, excessive consumption of alcoholic beverages, self-medication and all other forms of addiction.

It requires special control on providers of goods and services in relation to medicine, tobacco and alcoholic beverages.

It also requires the enforcement agency (to be designated by the Provincial Government) to enter into contracts with laboratories to make available technical services for the examining and certifying of safety, sustainability and quality of essential consumer products and services, as well as their communication to consumers.

On the matter of sustainable consumption, it sets as objectives the regulation of the treatment of waste and toxic products, “environmental” information and labeling and the directing by means of taxes or subsidies, within the contexts of provincial competence, of the price of products according to their ecological risk.

2. Legal action

The Code lays down that procedures for legal actions filed as a result of claims based on the violation of consumer rights shall be free of charge.

Furthermore, in the case of actions and/or claims brought as a result of actions affecting the collective rights of consumers or users, the settlement agreements reached shall benefit all consumers and users affected or threatened by the same event giving rise to the lawsuit. This will be the case for claims filed at both administrative and legal instances.

To this end, publication of the settlement agreement shall be mandatory.

The same effect erga omnes is also established for court rulings recognizing the claims made.

Nevertheless, court rulings rejecting claims brought shall not prevent action by consumers and users with individual interests who might not have taken part in the lawsuit. If rejection of the claim were to have been grounded on the insufficiency of proof, any other legitimate claimant shall be able to bring another lawsuit making use of new evidence.

The court ruling must be published by the losing party in the media that the judge determines to be most appropriate.

3. Penalties

In addition to the penalties laid down in Law No 24,240 the Code adds a requirement for corrective advertising in those cases where deceitful or abusive practices may have been incurred through information or advertising, in violation of the Code. Corrective advertising shall be published by the responsible party at its expense, in the same manner, frequency, size and preferably in the same medium, place, space and timetable, in such a way as to eliminate the effects of the violation.

It has been laid down that the Enforcement Authority will periodically publish information with statistics on decisions issued on violations, which will also include details of refusals to enter into a settlement.

Legal review of the penalties applied will be the responsibility of the Supreme Court of the Province of Buenos Aires, until the Contentious Administrative Court in the Province of Buenos Aires is operational, and subsequently, in those Legal Districts where there are no courts or tribunals for such venue.

4. Municipalities

By means of this rule the provincial government authorizes municipalities in the province to judge and apply penalties in the case of violations committed within their territories, and also for them to determine the guidelines for the display of mandatory information in commercial outlets. To do so, municipalities are charged with implementing the necessary bodies and structures.

In view of the powers of the municipalities to hear cases and apply penalties, and with the aim of unifying criteria within the province, it is planned to hold an “Annual Plenary” with all municipalities. The criterion adopted at these plenary meetings shall be binding on all Municipalities.

It is evident that these novel provisions in the Code have been established to encourage and favor the bringing of legal action by consumers, who have been provided with more accessible and less risky tools for the making of their claims.