Law and Normal 2. by Abbe Brown

Back in March I blogged on the relationship between law and normality. How do they relate? Does a focus on “normal” exclude appropriate regard for those who have, say, different bodies? Or is the introduction of special approaches for those who are different itself of concern, as this permeates the idea of a “mainstream” and an “other”. This post will develop this further, taking consumer protection law as an example.

In the UK, the Consumer Protection from Unfair Trading Regulations 2008, (which implement EU legislation) impose a duty on businesses to acting fairly and honestly to consumers. These operate at a public level, with the Office of Fair Trading and trading standards authorities able to intervene if there is concern at a business’ behaviour. The regulations prohibit some practices in all cases (including stating that a code of conduct has been met when it has not, or stating incorrectly that a quality mark has been obtained). Otherwise, the regulations address (1) behaviour by business which would materially distort the economic behaviour of the average consumer, leading them to make different decisions; and (2) misleading (both active and omitting) and aggressive behaviour. Examples provided in the relevant guidance is behavior which leads to consumers doing something they would not otherwise have done (eg booking a holiday, if they are given incorrect information about it, or agreeing to sell an item for a low price, if they are told that it is a fake when it is real).

For present purposes, the key issue is the term, “the average consumer”. This has a well established legal meaning, based on EU law. The average consumer is not a statistically average one, but rather one who is reasonably well-informed, reasonably observant and circumspect. Account should be taken of social, cultural and linguistic factors. Further, in the 2008 regulations, if behaviour is directly aimed at or is only likely materially to distort the behaviour of a narrower group, then regard should be had to the average member of those groups. These are described as the “average targeted” and “average vulnerable” consumer. Examples of this provided in the guidance are a product aimed at a disability is directed at consumers who are “vulnerable” because of that disability. Wheelchairs and hearing aids are used as examples.

Further, 2014 is a time of change for consumer protection. At the time of writing, amendments are proposed to the 2008 regulations which will give more rights to individuals eg to cancel arrangements. This builds on a report by the Scottish Law Commission and Law Commission, which also considered the position of vulnerable consumers. In contrast, the UK Consumer Rights Bill, which implements other EU legislation, does not do so, referring only to the average consumer. The Office of Fair Trading objected to this in the consultation process and it will be interesting to note how this develops.

From the perspective of the InVisible Difference project, a recognition in at least some of the consumer protection legislation that there is not one “average” through which the question of fair activity should be assessed, is welcome. Yet the assumption that people with disabilities are vulnerable, particularly regarding the purchasing activities of wheelchair users, raises questions. Indeed, it is a reminder that when regard is had within law and society to people with different bodies, it is often seeing them as people in need, requiring help - rather than recognizing all as valuable contributors to a diverse society. A goal of the project is to address this.

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