The Hyper-Vulnerable Consumer

By means of Resolution No. 139/2020 dated 27/5/2020 (in the Official Gazette from 28/5/2020) the Secretariat of Trade, which reports to the Ministry of Productive Development, provided that “for the purpose of what was prescribed in Section 1 of Law No. 24,240, hyper-vulnerable consumers are defined as people who are consumers and in situations of vulnerability in view of age, gender, physical or mental state, or by social, economic, ethnic and/or cultural circumstances, that cause special difficulties to fully exercise their rights as consumers”, definition that also comprises the “non-profit legal persons that orient their social objects to the collective ones comprised in this article”.

Section 2 of the Resolution establishes what may constitute the causes of hyper-vulnerability , including –among others- claims that involve rights or interests of children and adolescents, people belonging to the LGBT+ community, people over 70 years old, and people with a certified disability.

It also establishes two governing principles that will have to be adopted by the suppliers reported in these cases:

 

1. Accessible Language: all communication must use clear, colloquial language, expressed in simple, concise, understandable sense, and appropriate to the consumers’ conditions.

 

2. Enhanced duty to cooperate: suppliers must behave with the purpose of ensuring the appropriate and rapid resolution of the conflict by providing all possible assistance.

 

In Consumer Law, the existence of consumer groups that exhibit levels of aggravating vulnerability due to conditions inherent to the person or related to the particular situation they are going through, was evidenced.

Scholars have referred to this subtype of consumers, naming them in different ways. Some authors refer to them as “sub-consumers”, “particularly fragile consumers”, “vulnerable” or “hyper-vulnerable” consumers”.

However, in Argentine law, there was not an express mention of this category of consumers until the issuance of the resolution under analysis. The original bill to amend the Consumer Protection Law No. 24,240 and its preliminary approval of Deputies was the first in mentioning this category of consumers but it was not passed by the Senate. The current bill to amend Law No. 24,240 establishes a series of regulations to protect “especially social communities affected by an aggravating vulnerability, derived from special circumstances, particularly children and adolescents, elderly, sick or disabled people, among others”.

Scholars agree that the mentioned regulation is an indicative and not exhaustive provision because, if from one of the special circumstances, a different person from the ones mentioned in the regulation holds an aggravating vulnerability, that person will deserve a special treatment, too.

Beyond the recent resolution and the mentioned bills, it is important to highlight that the hyper-vulnerable consumer already had protection through the ratification of different international treaties (Convention on the Elimination of all Forms of Discrimination against Women, Convention on the Rights of the Child, among others) and other regulations and principles from our legal system. Besides, some case law has referred to this categorization.

Some authors have criticized the regulation under consideration for different reasons.

On the one hand, they maintain that the Secretariat of Trade does not have powers to regulate Law No. 24,240 in a direct way because, at most, it can only “suggest” the regulations. And, in that regard, they understand that, by creating a new category of consumers, it has exceeded their functions, since it has modified - basically – the text of the Law in force, a task which was exclusively reserved to the Legislators.

On a different note, they also criticize the definition of hyper-vulnerable consumer stated in Section 1 of the resolution under analysis. They argue that “hyper-vulnerability” is a wide and dynamic concept that must be appreciated from multiple aspects, and that the concrete and particular situation of a subject must be taken into account.

Finally, it has been stated that it was not necessary to expressly mention the notion of “hyper-vulnerability” in a legal text. If the pursued purpose is to concede a reinforced protection to certain groups who were historically ignored, it was enough with a correct hermeneutics of the regulatory framework in force and the consumers protective principles that, as we mentioned, have been considered for a while by various norms (national, local and international) and the case law in each specific case.