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 pasts
This
page considers the evolution of consumer protection, from
mediaeval supervision of weights & measures to food
and drug purity statutes, tort and product safety law
over the past century and restrictions on unconscionable
marketing of financial services.
It covers -
introduction
Although defective and tainted products, misleading
or false representations and dishonest measurements are
evident throughout history the emergence of coherent measures
for the protection of consumers is quite recent. Arguably
the notion of consumer rights (and recognition that the
state has an obligation to protect those rights) dates
from as late as the 1860s, although effective implementation
of consumer legislation and support for consumers in common
law took another 50 years.
Perceptions of those rights have expanded from concentration
on weights/measures to concern about food and drug safety
and thence to products that range from children's nightwear
to automobiles, insurance and investment schemes. Expansion
has embraced how goods and services are marketed (with
for example restrictions on deceptive advertising) and
relationships between vendors and buyers, including restrictions
on unconscionable contracts. It has also embodied notions
such as privacy.
Throughout the past 150 years consumer protection - whether
in statute law, common law, initiatives by individual
consumers or consumer advocacy bodies and action by regulators
- has been contested. It has been complicated by the weakness
or indifference of government agencies, unstable community
expectations regarding rights and responsibilities, uptake
of new technologies and the emergence of new markets (first
regional, later national and now global).
That history has resulted in a plethora of standards,
codes and law about goods, services and relationships.
It has also resulted in a constellation of government
agencies and, in some instances, nongovernment bodies
exercising government functions.
Consumer protection law thus has has two faces: prevention
and redress. In states such as Australia that law has
impinged on most areas of life, because consumption has
come to be viewed quite broadly and the capacity of the
state (including private sector surrogates for government
agencies) has grown to address such matters as -
- labelling
on cigarette packets
- 'child-proof'
toys
- tamper-resistant
pharmaceutical packaging
- indicators
of GMO in foods
- load
limits in elevators
- restrictions
on the use of disclaimers in contracts, warranties and
advertising
- agreements
about residential tenancies.
studies
There has been no comprehensive multi-jurisdiction history
of consumer protection law.
Insights are offered in Bruce Kercher's An Unruly
Child: A History of Law in Australia (Sydney: Allen
& Unwin 1996), Alex Castles' An Australian Legal
History (Sydney: Law Book Co 1982), Lawrence Friedman's
A History of American Law in the 20th Century
(New Haven: Yale Uni Press 2002) and A History of
American Law (New York: Simon & Schuster 1986),
Kermit Hall's The Magic Mirror: Law in American History
(New York: Oxford Uni Press 1989), John Baker's An
Introduction to English Legal History (London: Butterworths
2002) and SFC Milsom's Historical Foundations of the
Common Law (London: Butterworths 1981).
For tort law see in particular Rosalie Balkin & J
Davis' Law of Torts (Chatswood: LexisNexis Butterworths
2004), Danuta Mendelson's The New Law of Torts
(Oxford: Oxford Uni Press 2006), Francis Trindade &
Peter Cane's The Law of Torts (Oxford: Oxford
Uni Press 2000),Tort Law in America: An Intellectual
History (New York: Oxford Uni Press 2003) by G Edward
White, A Revisionist History of Tort Law: From Holmesian
Realism to Neoclassical Rationalism (Durham: Carolina
Academic Press 2005) by Alan Calnan and The Sources
of English Private Law to 1750 (Oxford: Oxford Uni
Press 1986) by Baker & Milsom.
For the emergence of federal consumer protection in the
US see in particular James Young's The Toadstool Millionaires:
A Social History of Patent Medicines in America Before
Federal Regulation (Princeton: Princeton Uni Press
1961), The Medical Messiahs: A Social History of Health
Quackery in Twentieth-Century America (Princeton:
Princeton Uni Press 1967) and Pure Food: Securing
the Federal Food and Drugs Act of 1906 (Princeton:
Princeton Uni Press 1989). Marc Law & Gary Libecap's
'The Determinants of Progressive Era Reform: The Pure
Food and Drug Act of 1906' in Corruption and Reform:
Lessons from America’s Economic History (Chicago:
Uni of Chicago Press 2006) edited by Edward Glaeser &
Claudia Goldin, Injury: The Politics of Product Design
& Safety Law in the United States (Princeton:
Princeton Uni Press 2006) by Sarah Jain and Taking
Your Medicine: Drug Regulation in the United States (Cambridge:
Harvard Uni Press 1980) by Peter Temin are also of value.
UK and Continental food safety regimes are considered
in Search for Pure Food: A Sociology of Legislation
in Britain (New York: Rothman 1974) by Ingeborg Paulus,
Cheated Not Poisoned? Food Regulation in the United
Kingdom, 1875-1938 (Manchester: Manchester Uni Press
2000) by Michael French & Jim Phillips and Mad
Cow, Sacred Cow: A History of Food Fears (New York:
Columbia Uni Press 2004) by Madeleine Ferrieres.
For obsolescence see Giles Slade's Made to Break:
Technology & Obsolescence in America (Cambridge:
Harvard Uni Press 2006).
Works on consumer activism are highlighted later
in this guide.
jeremiads
What has driven the development of contemporary consumer
protection regimes, including legislation, industry codes
and broader expectations among people who don't make policy
are articulate questions for dissemination through the
mass media?
It is arguable that few citizens - and arguably few policymakers
- have been energised by government discussion papers,
technical standards and official reports. Such documentation
is important but is often physically inaccessible or presented
in ways that inhibit commitment on the part of most people.
Rightly or wrongly, few individuals take the time to study
Hansard, peruse draft legislation and interpret submissions
by advocacy groups that inform legal development and codes
of practice.
Instead many people have been influenced by a handful
of works that are often polemical but have either directly
seized the reader's attention or have shaped debate by
highlighting issues and offering illustrations.
Such works include Upton Sinclair's The Jungle,
Rachel Carson's Silent Spring, Vance Packard's
The Hidden Persuaders and Ralph Nader's Unsafe
At Any Speed.
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