Consumer Protection in the Affluent Society
M. J. Trebilcock*
I. “Who is to be Protected from What ?”
The U.S. Special Committee on Retail Instalment Sales, Consumer
Credit, Small Loans and Usury, appointed by the National Confer-
ence of Commissioners on Uniform State Laws, in 1965 commenced
their report with this question. With the plethora of “reforms” in
the area of consumer protection which have been either enacted or
proposed in recent years, one might have supposed that this question
is now rather prosaic. It is, of course, clear that present reforms do
reflect a recognition by the State of the need to protect the con-
sumer, but simply to say this is not to have identified the under-
lying philosophy of consumer protection, if any. Why protect the
consumer? Against what? What goal do these reforms represent
a step towards? These questions are not as prosaic as they look.
They have, however, to be clearly answered both in order to evalu-
ate progress to the present, and to determine what remains to be
done for the future.
The U.S. Special Committee, in pursuing the question it framed
for itself, said:
It is fair to ask precisely what it is that the consumer is to be protected from.
Must he be protected from his own lack of knowledge or discipline which
leads him to take advantage of easy credit to buy things he does not need
or cannot afford? Is he to be protected from the “fringe” operator who
may take advantage of the ignorance and gullibility of the consumer to
cause him to overbuy or pay too much?l
The Committee took the view that consumer protection is a
problem of many facets and that no one approach can solve all
facets. However, the Committee’s formulation of possible answers
to the question it put itself is interesting. If one examines the words
italicised, one notices that implicit in them is a concept of a prudent
shopping decision. When can one say that a person through lack of
knowledge or discipline has bought goods that he does not “need”
or “cannot afford”? When can one say that the fringe operator has
caused a consumer to “overbuy” or to “pay too much”? The need
for action in a particular field can only be established, on this
* LL.B. (N.Z.), LL.M. (Adel.). Associate Professor of Law, McGill University.
‘At p. 9. (My italics).
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approach, when these questions have been answered, and these
questions can only be answered after a -concept of a prudent pur-
chase or a prudent shopping decision has been constructed. What
is a prudent shopping decision? The question has only to be posed
for some of the difficulties inherent in it to become apparent.
However, if we assume, with the Committee, that the over-all
objective of the law relating to consumer protection is to promote
prudent shopping decisions, whether in relation to goods, services
or credit, and whether this is sought to be achieved by the elimi-
nation of ignorance or lack of discipline or by the regulation of
“fringe” operators or whatever, these difficulties have to be faced.
How the law defines it’s concept of a prudent shopping decision
will be of central importance on a number of issues. For example,
in the regulation of advertising, should the law prohibit the adver-
tisement which encourages me to buy e.g. a Ford Mustang by
making an appeal to my need to feel masculine, to feel “a real
man”, or the advertisement which encourages me to smoke Marl-
boro cigarettes by appealing to my suppressed cowboy (masculinity ?)
complex? In both cases, it might be argued that the advertisements
emphasize the irrelevant, appeal to unhealthy instincts, that a pru-
dent shopping decision in the case of the car would turn on factors
such as durability, economy, safety, etc., and in the case of the
cigarette, perhaps levels of nicotine and tar content. Should the
law therefore regulate advertising so as to prohibit advertisements
which emphasize “irrelevant” considerations, and appeal to “un-
healthy” psychological fears, needs and frustrations ? What is “ir-
relevant”? What is “unhealthy”?
Similar issues would arise in relation to packaging, and other
point-of-sale selling techniques. The law’s concept of a prudent shop-
ping decision would also control what kind of implied terms are
read into transactions. For example, the implied terms as to “fitness”
for purpose, and “merchantability”, inherited from 19th century
days of laissez-faire and still retained in our law of sale of goods
today would have to be re-examined to determine whether the utili-
tarian or functional values they reflect are any longer important
elements in the modern concept of a prudent shopping decision.
The trend has been recently toward making these terms, or terms
closely derived from them, non-excludable in sales transactions.2
2 See ss. 17 and 18, U.K. Hire-Purchase Act, 13-14 Eliz. II, c. 66; s. 5, Aus-
tralian Uniform Hire-Purchase Acts; U.K. Law Commission Report on Exemption
Clauses in Contracts (No. 24) (1969); Adelaide Law School Report on Consumer
Credit (South Australian Gov’t. Printer, 1969) (Chaps. XII and XIII).
No. 2]
CONSUMER PROTECTION
Before this is done, one would have thought that an inquiry would
have to be made as to whether these terms (and the values inherent
in them) provide the kind of assurances that people now want.
Perhaps, for example, a non-excludable implied term, in the case
of some cars at any rate, that such a car will make a buyer feel
like “a real man”, might represent a more relevant guarantee today
that the buyer is getting what he expects, and needs (i.e. what is
prudent for him).
The problem pervades the whole of the bargaining process in
the consumer market place. Should manufacturers’ guarantees be
staindardised? Should they be made mandatory? Who should they
protect? Most important of all, what should they guarantee? That
a washing machine will last 20 years, 10 years, 1 year, will wash
clothes brighter than brand new, will retain it’s gleaming enamel
finish, for how long?
Again, in relation to products liability, who should be protected
against what? If, for example, cars are not sold for durability,
but for looks, ride, acceleration, etc., why should a buyer, say, of a
two-year old car be protected against defects at all ? It may no
longer be “prudent” to buy for durability. Why should a consumer
be allowed to complain if he does not get it?
Sooner or later in this kind of inquiry, the relation of the law
to the whole current social and economic norm of expanding pro-
duction and consumption has to be faced.
II. A State-Planned “Good Life”?
If one examines the views of those who are critical of modern
advertising and selling techniques that encourage so-called “irra-
tional” consumption by appealing to status or psychological needs
etc., and who would wish these kinds of practices to be regulated
by the law, it is clear that their views are premised on a parti-
cular conception of what are sound consumption patterns. This
conception emphasizes utility, durability, economy, etc., and decries
consumption for other purposes.
For example, to cite a popular writer in the field, Vance Packard,
in his various books,3 attacks the factors in our society and our
economy that have produced planned obsolescence and buying for
status; he applauds such efforts as he has been able to discover
which have been made by industry towards what he calls “Restoring
3 The Hidden Persuaders, (1957) ; The Status Seekers, (1959) ; The Waste
Makers, (1960).
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Pride in Quality” ,4 for example, better manufacturers’ guarantees,
better product testing before sale, and more stringent quality
standards. In the concluding chapter of his book, The Waste-Makers,
called “Achieving An Enduring Style of Life”, he applauds signs of in-
creasing interest in cultural pursuits, he admires the life-style of
an old woman in z lonely New England coastal cottage who has
virtually no wordly possessions and spends her time making greeting
cards out of sea mosses. His philosophical base is well revealed in the
dedication of the book, “To my Mother and Father who have never
confused the possession of goods with the good life”. Packard’s
whole campaign for closer regulation of advertising, selling tech-
niques, product quality, etc., is premised on this philosophy of the
personal and social good and before the law decides whether to
impose the regulations that Packard advocates, it must also decide
whether it accepts the same non-materialist philosophical premise.
Even the much more sophisticated analysis of production-con-
sumption patterns in modern society advanced by J. K. Galbraith
in The Affluent Society 5 and The New Industrial State(; does
not avoid a commitment to the same kind of philisophical stand-
point adopted by Packard and other critics of the consumption
ethic.7 However, Galbraith at least perceives the tactical dangers
involved in this:
To have argued simply that our present preoccupation with production of
goods does not best aid the pursuit of happiness would have got nowhere.
The concepts to which one would have been committed would have been
far too vague.
Any direct onslaught on the identification of goods with happiness would
have had another drawback. Scholarly discourse, like bullfighting and the
classical ballet, has it’s rules and they must be respected. In this arena
nothings counts so heavily against a man as to be found attacking the values
of the public at large and seeking to substitute his own. Technically his
crime is arrogance. Actually it
is ignorance of the rules. In any case, he
4 The Waste Makers, ch. 22.
5 J. K. Galbraith, The Affluent Society, (1958).
6 J. K. Galbraith, The New Industrial State, (1967).
7 From a wider sociological standpoint, see e.g., Thorstein Veblen, The Theory
of the Leisure Class, (1899); Erich Fromm, The Revolution of Hope, (1068),
also, Escape from Freedom, (1941) and The Sane Society, (1955); Herbert Mar-
cuse, One-Dimensional Man, (1964); Jacques Ellul, The Technological Society,
(1964).
F rom a more specific “consumer” standpoint, see e.g., Senator Warren G.
Magnuson, The Dark Side of the Marketplace, (1.968); James Bishop Jr. and
Henry W. Hubbard, Let the Seller Beware, (1969); Sidney Margolius, The In-
nocent Consumer v. The Exploiters, (1967); Ralph Nader, Unsafe At Any Speed,
(1965).
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is automatically removed from the game. In the past this has been a common
error of those who have speculated on the sanctity of present economic
those who have sought to score against materialism and Philistinism.
goals –
They have advanced their own view of what adds to human happiness. For
this, they could easily be accused of substituting for the crude economic
goals of the people at large the more sensitive and refined but irrelevant
goals of their own. The accusation is fatal.
The reader will now appreciate the care with which the defences against
such an attack have been prepared … s
It is certainly true that Galbraith’s basic thesis is not that con-
sumption patterns today are necessarily bad, but rather that most
consumer wants are artificially contrived by the process of pro-
duction itself, either negatively by emulation and suggestion or
positively by advertising and salesmanship. The conventional wisdom
that holds that production must be maximized so as to cater for
existing consumer wants is proved fallacious once it is shown that
the process of production creates it’s own wants –
that the wants
have no existence independent of the process of production that
creates them. Galbraith argues that, in contrast with the position
in the private sector, production in what has traditionally been re-
garded as the public sector is notoriously deficient (e.g. schools,
roads, hospitals, etc.) and that our goal should be to devise means
of transferring some of our productive capacity, and necessarily
also a proportionate amount of consumer demand, from the private
sector to the public sector. He advances various proposals to this
end.
Even on this approach, however, the “accusation” of having
aligned oneself with a particular concept of the “good life” cannot
be avoided. Galbraith’s general thesis turns on the proposition that
we are over-supplied with the commodities customarily provided by
the private sector and under-supplied with the commodities custom-
arily provided by the public sector. To assert this necessarily in-
volves an espousal of a particular concept of the good life; this
appears elearly from two of Galbraith’s key chapters in The Af-
fluent Society called appropriately “The Theory of Social Balance”
and “The Redress of Balance”.
Apart from this, it is clear that his recognition of the dangers
of launching a direct onslaught on the identification of goods with
happiness is a recognition merely of the tactical dangers involved,
nothing more. Moreover, quite early in the development of his gen-
eral thesis, he contests vigorously the “conventional wisdom” that
holds that the urgency of consumer wants does not diminish appre-
8 J. K. Galbraith, The Affluent Society, at pp. 270-271 (Mentor ed.).
McGILL LAW JOURNAL
[Vol. 16
ciably as more of them are satisfied, that the relative worth of
goods cannot be related to any given criteria, e.g. that psychological
needs may be as urgent as physical needs.” Galbraith clearly sup-
ports the application of the doctrine of diminishing marginal utility
to consumer wants:
With increasing per capita real income, men are able to satisfy additional
wants. These are of a lower order of urgency. This being so, the production
that provides the goods that satisfy these less urgent wants must also be
be of smaller (and declining) importance ….
In the contemporary United
States, the supply of bread is plentiful and the supply of bread grains even
redundant …. And having extended their bread consumption to the point
where it’s marginal utility is very low, people have gone on to spend their
income on other things. Since these goods entered their consumption pattern
after bread, there is a presumption that they are not very urgent either –
that their consumption has been carried, as with wheat, to the point where
marginal utility is small or even negligible. So it must be assumed that the
importance of marginal increments of all production is low and declining.
The effects of increasing affluence is to minimize the importance of economic
goals. Production and productivity become less and less important …. The
notion that wants do not become less urgent the more amply the individual
is supplied is broadly repugnant to common sense.10
Thus, however carefully Galbraith may have sought to avoid any
particular premise as to how human happiness is best promoted,
his starting point is really remarkably similar to that of Packard:
that the possession of goods is not the same thing as the good
life –
in contemporary terms, essentially a non-materialist philo-
sophy.
The opposing philosophy to that of Packard, Galbraith, etc. em-
phasizes, of course, the importance of production in maintaining a
high standard of living. An expanding economy and increasing out-
put puts more goods into more people’s hands and thus improves
the material lot of the average man and reduces inequality. An
9 Argued by e.g., Martin Mayer, Madison Avenue, U.S.A., (1958) (Harper Row)
at p. 345; cf. Erich Fxomm, The Revolution of Hope, (.1968) (Bantam ed.) at
pp. 102 et seq., also Galbraith, The New Industrial State, (Signet ed.) at pp.
211, 212.
10 The Affluent Society, (Mentor ed.) at pp. 118, 119, 124. While it makes
obvious sense to say that a consumer -atisfies wants in order of urgency,
once his wants have moved beyond the area of basic physical needs and move
closer to the area of subjective, psychological needs and desires, it becomes
harder to assign any worth-while meaning to a concept of a “prudent” shopping
decision. Should a consumer buy car X at $4,Q100 because it is sporty and
appeals
is well-appointed
and appaals to his sense of class and social status or car Z at $3,000 which
is basic and durable and appeals to his sense of utility? Which decision should
the law encourage or inhibit? A fortiori in the case of different commodity
markets e.g. cars and trips abroad.
to his masculinity, or car Y at $3,500 because it
No. 2]
CONSUMER PROTECTION
expanding economy assures fuller employment which in turn pro-
vides the means to consume the output of production. An expanding
economy therefore ensures all-round economic security.”
According to this philosophy, anything that increases consumption
and thus production is presumably good, anything that inhibits or
retards consumption and production must be bad. Galbraith em-
phasizes the predominant position that we have come to accord to
production by referring to the argument used by the Republicans in
the 1954 Congressional elections that this had been the second best
year in history. By this was meant, of course, that the Gross Na-
tional Product in 1954 was the second highest in history. “No person
in either party showed the slightest disposition to challenge the
standard by which it
is decided that one year is better than
another.”’12 Certainly when politicians today refer to a country’s
standard of living they are referring almost invariably to the level
of production-consumption of goods per capita of population. No
other measuring-stick is thought to be relevant.
Another example which reflects graphically the importance com-
monly attached today to production is an interview with President
Eisenhower during the recession of the late fifties. Eisenhower
was asked what the people should do to make the recession recede:
A. Buy
Q. Buy What ?
A. Anything.13
Upon which philosophy of production the law chooses to align
itself will depend a number of major decisions in the field of
consumer protection.
On the philosophy which emphasizes the importance of expanding
production, consumer protection, in the nature of things, is almost
defined out of existence.1 4 Any measures designed to protect a
consumer against imprudent shopping decisions necessarily inhibit
consumption and thus production, which is bad. Therefore, for
example, we should not attempt in any way to regulate the want-
producing processes, particularly advertising, packaging, salesman-
ship. We should not start implying into transactions terms which
11 This view is argued strenuously by Gunnar Myrdal in Challenge to Affluence,
(1052). Myrdal contests the view that rapidly expanding production
is no
longer necessary and criticizes Galbraith for contributing to complacency about
American economic growth (,pp. 60, 61, Vintage ed.). However Myrdal concedes
that a great deal of the expansion will need to be in the public sector.
1 2 The Affluent Society, (Mentor ed.) at rp. 101.
‘3 Cited by Vance Packard, The Waste Makers, (Cardinal ed.) at p. 15.
14 See Fronm, The Revolution of Hope, (Bantam ed.) at p. 3&.
McGILL LAW JOURNAL
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will guarantee utility or durability. We should not regulate interest
rates and risk excluding possible areas of demand. We should not
regulate remedies for default for the same reason. If it is argued
that to adopt this course will be to encourage, or at least to acquiesce
in, imprudent consumption, we must say, with President Eisenhower,
that the utility of our purchases is no longer relevant. We must
consume in order to produce and we must produce in order to pro-
vide employment in order to create economic security. What is
produced and what is consumed is largely beside the point. Pro-
duction is to be justified on other grounds. The law should not
prevent any consumer from consuming anything. No matter how
worthless the thing consumed, the act of consumption serves a
higher social good. It is a case of having to be cruel to the con-
sumer in order to be kind to him, a case of the consumer having
to spend himself rich. Consumption becomes an end in itself.’ 5
On the philosophy endorsed by Galbraith, Packard, etc., the law
would probably arrive at opposing conclusions on the various issues
instanced above. While, obviously, their goal of transferring some
portion of production and consumption to the public sector might
be achieved by economic measures (as argued by Galbraith),H6 it
would not at least be inconsistent with this objective for the law
extensively to regulate advertising, labelling and other point-of-sale
selling techniques. 17 Indeed, it would be consistent with this goal
for the law to ban a good deal of modern advertising altogether on
the grounds that it is contriving wants artificially for goods of no
or minimal utility and is therefore encouraging wastefulness of
resources. In relation to the products themselves, the law would
presumably impose or imply (as is already done in some cases)
15 Fromm, The Sane Society, (Fawcett ed.) at p. 123.
16 The Affluent Society, chaps. XXI-XXV; e.g. by the imposition of heavy
sales taxes on consumer goods.
In -the New Industrial State, Galbraith develops a much more general thesis
for increased State planning of the economy. He argues that the demands of
modern technology involve a planned economy, whether it be planned by big
business or by the State. Planning of the economy by big business has proved
inadequate in that:
a) the market is not concerned with large areas of social need;
b) consumer demand is “managed” by business in its own interests, i.e.,
the consumer is no
in his wants and therefore
production catering to a contrived demand does not necessarily serve any
legitimate social interest.
longer “sovereig”
Thus, some Tegulation by the State is required to ensure that legitimate
social interests are promoted.
-7 Galbraith acknowledges
228, 356, 357.
this: The New Industrial State, at pp. 226,
No. 2]
CONSUMER PROTECTION
rigorous, minimum standards of quality and safety so as to reflect
the utilitarian ethic. This, by itself, however, would not be enough
because technically, at any rate, this might still be consistent with a
norm of expanding production. Suppose that the law implies terms
into sales of new cars that they are to last for thirty years. After
the car market is (rapidly) saturated, productive capacity could then
be diverted to producing a yacht for every member of the community,
then a holiday cottage, etc. Thus, on the Gaibraith premise, the law
would have to concern itself with utility not only within a particular
commodity market but also as between one possible commodity
market and another, i.e. if a man already has a house and a car,
does he also need a yacht and a holiday cottage ?
Thus, it would seem consistent with the stated goal of this
philosophy to ban products of little or no marginal utility (how-
ever this is defined). Where, for example, productive capacity is being
devoted to producing products having little product differentiation
one from another, some of these products ought to be banned and
the productive capacity thus released be transferred to more socially
useful ends (presumably in the public sector). The extreme form
of this argument would have the State prescribe what goods are
“best” for a consumer, these goods alone being available for con-
sumption by him. This might presumably come close to a Soviet-
style form of State planning. Few probably would opt for this
in our particular social and economic context, but, nevertheless,
the philosophical premise which underpins this end is the same
philosophical premise upon which the State acts when, for example,
it (with Ralph Nader) insists that all cars measure up to certain
safety and pollution standards. Whether a consumer likes it or not,
he is required to buy a car with certain safety features and pollu-
tion controls. We are now reaching the point where these are being
insisted on at the expense of appearance and performance. Perhaps
the ultimate would be for the State to prescribe one kind of car
only –
built like a tank for the sake of safety, designed to last
thirty years for the sake of durability, and built to burn a minimum
of fuel for the sake of economy and ecology. In
this way, the
motor-car would make the minimum imposition on the resources
of the private sector because it would involve only one model and
would require repair or replacement
infrequently, and it would
make a drastically reduced demand on the resources of the public
sector in the form of hospitals for the maimed and government
measures to purify polluted air and water. In addition (as is al-
ready being mooted), cars could be banned from our cities in the
interests of cleaner air. The same arguments can be made about
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[Vol. 16
a host of other products, from detergents and throw-away bottles to
intoxicating liquors and fatty foods.
The criticism that State regulation of the consumer market-place,
directed to these ends and however moderate, exposes itself is the
criticism to which any form of State planning is subject, namely
that State-prescribed values, priorities and goals are destructive of
individual freedoms. This point of view was eloquently put in a
recent editorial in a Chicago newspaper:
there is,
We see evil in a viewpoint that regards the public as ‘people who have neither
taste, judgment, nor hope, but only a swollen and diseased desire for the
accumulation of things that is constantly irritated and enflamed by forces
of the conspiracy’. We prefer to regard the public as human in its desire
for better things, yes, but also as independent-minded, discerning, quick to
spot and reject fraud and, thanks to the competitive system, utterly free
to do so. As to the viewpoint that the public is, indeed, a mass of guinea
pigs meekly being herded to and fro, this has an unvarying corollary: That
the herd needs constant tending, constant protection from the unspeakable
folly of its own miserable judgment. In a word, the critics of the competitive
system stand ready as Big Brother to usurp the decision-making function
at every junction. If
indeed, an ‘unholy conspiracy against the
American public’, perhaps here is a more logical place to look for it.18
The reply that the Packard, Galbraith forces must make to this
charge of paternalism is that they are not seeking to impose their
value system on a reluctant “herd”, because the value system of
the herd at present is that inculcated by a system of production
which artifically contrives the wants to support it. In other words,
the present value system of the herd is itself one which has been
imposed on them. Ideally, the objective ought presumably to be to
remove the present conditioning processes and leave the consumer
free to form his own values and his own wants. Unfortunately, it
is not easy to see how this can be achieved, by State regulation at
least, without imposing another set of values on him. For example,
if the law were to ban -all “irrational” advertising, i.e. all advertising
stressing non-functional considerations, the law would seem to have
committed itself to the utilitarian ethic and to the inculcation of
the values implicit in this into the community.19 Some might indeed
argue that to replace captivity to the whims of industry, in the
8 Bost. Coll. I-d. Comm. L. Rev. at rp. 483.
18 Chicago Daily News, November 22, 1965, p. 8, col. 2; cited by Prather, (1967),
19 This dilemma is well perceived by Marcuse, One-Dimensional Man, (Beacon
ed.), pp. 6, 7;
“In the last analysis, the question of what are true and false needs must be
answered by the individuals themselves, but only in
the last analysis; that
is, if and when they are free to give their own answer. As long as they are
kept incapable of being autonomous, as long as they are indoctrinated and
manipulated
(down to their very instinets), their answer to this question
No. 23
CONSUMER PROTECTION
wants created and satisfied, with captivity to the whims of the State
is, in terms of the total impact on individual freedoms, only a mar-
ginal improvement. Indeed, Hayek, in The Road to Serfdom, argues
that the position would, in these terms, be worse:
There is no real freedom of thought in our society, so it is said, because the
opinions and tastes of the masses are shaped by propaganda, by advertising,
by the example of the upper classes, and by other environmental factors
which inevitably force the thinking of the people into well-worn grooves.
From this it is concluded that if the ideals and tastes of the great majority
are always fashioned by circumstances which we can control, we ought to
use this power deliberately to turn the thoughts of the people in what we
think is a desirable direction.
Probably it
is true enough that the great majority are rarely capable
of thinking independently, that on most questions they accept views which
they find ready-made, and that they will be equally content if born or coaxed
into one set of beliefs or another. In any society freedom of thought will
probably be of direct significance only for a small minority. But this does
not mean that anyone is competent, or ought to have power, to select those
to whom this freedom is to be reserved. It certainly does not justify the
presumption of any group of people to claim the right to determine what
people ought to think or believe. It shows a complete confusion of thought
to suggest that, because under any sort of system the majority of people
follow the lead of somebody, it makes no difference if everybody has to
follow the same lead. To depreciate the value of intellectual freedom because
it will never mean for everybody the same possibility of independent thought
is completely to miss the reasons which give intellectual freedom its value.
What is essential to make it serve its function as the prime mover of intel-
lectual progress is not that everybody may be able to think or write anything
but that any cause or idea may be argued by somebody. So long as dissent
is not suppressed, there will always be some who will query the ideas ruling
their contemporaries and put new ideas to the test of argument and propa-
ganda. 2 0
cannot be taken as their own. By the same token, however, no tribunal can
justly abrogate to itself the right to decide which needs should be developped
and satisfied. Any such tribunal is reprehensible, although our revulsion does
not do away with the question: how can the people who have been the object
of effective and productive domination by themselves create the conditions of
freedom? The more rational, productive, technical and total the repressive
administration of society becomes, the more unimaginable the means and ways
by which the administered individuals might break their servitude and seize
their own liberation.”
2O The Road to Serfdom, (Phoenix ed.), at pp. 164, 165. The modern liberal
is, of course, always faced with -a dilemma on a question of State regulation.
A philosophy of individualism has traditionally been a cornerstone of liberalism,
and State planning necessarily circumscribes
individual freedoms. The only
justification a
in any
particular case is that, in that case, there is less real freedom when the matter
is left to free enterprise. Those who
(like Milton Friedman, Capitalism &
Freedom, (1962), at pp. 5, 6) criticize modern liberals for having perverted
the true concept of liberalism by supporting State regulation, in some cases
liberal can offer for -upporting State regulation
McGILL LAW JOURNAL
[Vol. 16
The Packard, Galbraith form of paternalism also runs into a
dilemma when applied to the question of providing consumer pro-
tection for the poor. When one examines, for example, the case
histories of the poor catalogued by Caplowitz in The Poor Pay
More,21 and the difficulties encountered by consumers in meeting
credit commitments of the size necessary to support the desired
level of consumption, two reactions are possible. First, one can say
that credit should never have been extended to these people in the
first place, and advocate regulation of interest rates and remedies
for default so as to render it no longer economic for private enter-
prise to supply these people with credit, and exclude them from
the market-place. But then the 20th century liberal says this is unfair.
These people need credit more than anyone else in order to main-
tain an adequate life-style, and it is precisely the people most in
need of credit who are now to be denied it. The argument that the
credit is required for “luxuries” and is not therefore justified is
rejected on the grounds that according to current social values, re-
frigerators, washing machines, television sets and motor-cars have
become necessities. To deny people the opportunity of acquiring
them is to induce an intolerable level of inequality and poverty
in the community and to sow the seeds of major social discontent.
Thus, so far from the State denying the poor credit, it should do
nothing to impede the availability of credit to them and should
even take positive steps to ensure that the means are available to
them for maintaining an acceptable level of consumption, e.g., by
the State making low-cost loans available, 22 or by a negative income
tax providing a guaranteed minimum income.
in the heyday of 10th century
individualism most
laissez-faire
overlook the fact that even
liberalism, the classic, Mil-style philosophy of individualism was not maintained
intact. For example, while there may have been individual freedom in the
marketplace, there was not in the area of private morals. Today, the position
has tended to become reversed. Which age promoted
is
not easily determined.
21 Chaps. 10 and Xii.
22So recommended by the Special Joint Committee of the Canadian Senate
and House of Commons on Consumer Credit, 1967, at pp. 4, 21, 28. Proposals
such as these re-emphasize that there is more than one way of approaching
consumer protection through State regulation. It may be argued, for example,
that the problems of the low-income or ghetto consumer do not raise problems
essentially of “law reform” at all, that the way of dealing with the malpractices
of neighbourhood merchants and peddlers of doubtful reliability is to reduce
dependence on them This involves
it
becomes expedient for consumers to go outside their neighbourhood and shop
comparatively amongst better-class merchants. The problem thus posed is a
social and economic one, not a legal one.
increasing incomes to a point where
No. 2]
CONSUMER PROTECTION
But then the other side of the 20th century liberal objects that
all this will simply reinforce the current norm of expanding pro-
duction and the consumption ethic, will escalate the dehumanising
and de-individualising effect of mass advertising and mindless con-
sumption and will render more remote the prospects of ever having
surplus productive capacity available to employ in the public sector.
Moreover, he will say that the exercise will be never-ending. Having
made it possible for the poor to acquire the necessities of life as
conceived by the current scale of values it will be found that he
is still at the bottom of the social pyramid because the level of
consumption of people one stage off the bottom will have moved
up yet another stage in order to preserve their relative status.2 3
Thus the dilemma faced by the 20th century liberal in this con-
text is whether to advocate the removal of inequality and poverty
(as conceived by the current scale of social values) by promoting
consumption at the bottom of the social scale (and consequentially
throughout the social scale) or whether on the other hand to continue
to maintain that the possession of goods is not the same thing as
the good life and that the life-style to be admired is that of Packard’s
New England sea-moss gatherer. In this case the life-styles of the poor
in our society ought to be the object of our envy rather than our
sympathy.
One final argument which might be advanced on behalf of the
Packard, Galbraith case for State ordering of priorities in pro-
duction is sheer physical necessity. If we accept that total resources
available to us for all purposes are limited and may ultimately
be exhausted, then some kind of State planning to determine social
priorities probably becomes inevitable. For example, we have seen
that our resources of clean air and water are rapidly being ex-
hausted. In the light of this, it will obviously prove necessary to
prescribe, for example, what kind of vehicle will be allowed on the
roads, what kind of manufacturing processes will be permitted in
the factories, etc. This, sooner or later, becomes an issue not of what
constitutes the good life, but of whether there should be life at all.
These, then, are the difficulties in the way of the law bestowing
it’s cachet upon any particular philosophy of consumption.
The question must now be asked, is it possible for the law relating
to consumer protection to avoid a commitment altogether on these
issues, and the regulation of the consumer market-place in the light
thereof ?
23 See Veblen, op. cit., at pp. 31, 32, 102, 104; also Gaibraith, The Affluent
Society, at p. 1M.
McGILL LAW JOURNAL1
[Vol. 16
The only alternative would appear to be a system of protection
based on information. In other words, the debate, put in traditional
terms, would seem to be between regulation on the one hand, and in-
formation or disclosure, on the other. This is not, of course, to
suggest that these are necessarily opposed alternatives or that were
the law to opt for information, it would have entirely avoided the
problems discussed above. The law’s commitment to some regula-
tion of the consumer market-place is now probably of too long a
standing to be repudiated. For example, the various implied terms
as to quality in sales transactions, products liability generally, and
control of creditors’ remedies are areas of regulation of long and
respectable standing. The law here cannot avoid asking itself the
question, what is it sought to chieve by these forms of regulation?
III. An Informed Consumer in a Competitive Market-place?
The consumer’s right to be given the facts he needs to make an
informed choice has been so frequently asserted in high places that
it can now be taken to be established dogma. The last three Ameri-
can Presidents have formally espoused this principle in messages
to Congress. Virtually every official committee of inquiry into con-
sumer protection or consumer credit in the Western World in recent
years has endorsed the consumer’s right to information as the cen-
tral philosophy governing reforms in this area.
A philosophy of information in this context has several advan-
tages. First, it reduces the entanglements of the law in the issues
canvassed in the earlier part of this article. Secondly, it is con-
sistent with the traditional free-market theory of economics. Even
the staunchest defenders of the free enterprise system and non-
governmental interference with the operation of the market concede
that for the market to operate as a just and efficient regulator of
men’s bargains, both parties to a bargain must be informed. For
example, even so eloquent an advocate of 19th century laissez-faire
liberalism as Milton Freidman acknowledges this:
Fundamentally, there are only two ways of co-ordinating the economic
activities of millions. One is central direction involving the use of coercion
the technique of the army and of the modern totalitarian state. The other
is voluntary co-operation of individuals –
the technique of the market place.
The possibility of co-ordination through voluntary co-operation rests on the
elementary –
proposition that both parties to an
economic transacCion benefit from it, provided the transaction is bi-laterally
voluntary and informed.24
yet frequently denied –
24 Capitalism & Freedom, (University of Chicago Press, 1.962), at p. 1. The
italics are Professor Friedman’s,
No. 2]
CONSUMER PROTECTION
The right of a consumer to be properly informed is now so widely
acknowledged and casually argued that one might have supposed
that either that state of affairs now exists or at worst is within
easy striking distance. The thesis for much of the rest of the article
will be that the consumer at almost every point in the bargaining
process in a typical consumer transaction is at present grossly ill-
informed and that furthermore the difficulties of remedying this
deficiency, contrary to popular belief, and given the best will in
the world, will prove immense.
Before examining the various stages in the consumer bargaining
process, it may be useful to construct a model of the bargaining
process s it commonly operates in ,a competitive market of a purely
commercial character when business interests are involved on both
sides of the bargain. Let us assume that a manufacturing enterprise
is contracting to purchase in bulk the new materials and components
it needs, say, to manufacture either television sets or motor-vehicles.
First of all, it will not have to fight its way through sm electronic
barrage of highly sophisticated advertising emphasizing how sexy
steel sheeting for motor-vehicle body work is, or how glamorous
transitors for television mechanics are. Secondly, the manufacturer
will have a highly qualified technical staff who will evaluate the
quality of steel and transistors needed, and the quality offered.
Information as to sources of supply and costing around the world
will be available through trade networks, associations, technical
literature and contacts. Highly expert negotiators will settle prices,
delivery, quantity, quality, terms of payment, etc. Legal experts
(probably house lawyers) will be retained to draw up contracts
covering terms settled and all contingencies. Standard form contracts
will not be treated as a formality and signed unread. The bargaining
process from start to finish is an entirely real one involving highly
informed parties who are both skilled in dealing in the commodity
in question and experienced
in the process of bargaining itself.
Nothing is a formality. The argument for non-governmental inter-
ference in such a process is a formidable one. Let us now see what
happens when the motor-car or television set, or whatever the case
may be, is released into the consumer market-place.
(a) Advertising
The first stage in the bargaining process in the typical consumer
transaction is the advertising stage.
No factor has had so profound an impact on the consumer bar-
gaining process as modern advertising. In 1966, advertising was
McGILL LAW JOURNAL
[Vol. 16
running at about $16,500 million a year in the U.S., and at about $821
million a year in Canada. This represents an annual expenditure on
advertising in the U.S. of over $80 per capita of population and
in Canada of over $40 per capita of population. 25 The three leading
soap companies in the U.S. spend $430 million a year on advertising.
Bristol-Myers’ annual advertising bill of $130 million exceeds the
United Nations’ entire annual budget of $117 million. The $17 billion
dollars spent each year on advertising in the U.S. is equivalent to the
total amount of government expenditure on medical, hospital and
health services. 26 The consumer pays dearly for the benefit, if any,
that he derives from being told what he wants.
The social and ethical issues raised by modern advertising have
given rise to enormous debate. Modern media, particularly television,
have made available to advertisers a large and captive audience
which can be exposed to very sophisticated presentations of a prod-
uct at very frequent intervals. At what point this becomes a socially
unacceptable form of psychological conditioning is the essence of
the debate. Some, like Packard and Galbraith, see advertising as
artificially contriving many of today’s consumer wants. This view
is probably overstated because in a sense production almost always
precedes and creates the corresponding wants. Presumably, there
was not a widespread demand for bread, the staff of life, until
someone produced it and its virtues were made manifest. Some, like
Huxley, see modern advertising and the conditioning it involves as
one of the fore-runners of the Brave New World.27 One of Huxley’s
prescriptions for the ill, however, namely close legislative regula-
tion of “psychological” advertising etc.,28 may, on another view,
itself involve the imposition of a value system, determined by the
State, on the consumer which is equally destructive of individual
freedoms. According to Hayek at least,29 we may simply be setting
off for the Brave New World by another route. Some, like Boorstin,
argue that the world of images and illusions created by advertising
and the media generally are alienating the individual from reality.2 a
25 O.J. Firestone, The Economic Implications of Advertising, (Methuen, 1067),
at p. 35.
26 See Sidney Margolius, The Innocent Consumer v. The Exploiters, chap. 2.
27 Aldous Huxley, Brave New World Revisited.
28 Ibid., at pp. 109, X10, (Perennial Libraxy ed.).
29 Supra, p. 273.
29a Daniel J. Boorstin, The Image, (Pelican ed., 19.62): A world is created where
“the Grand Canyon itself [becomes] a disappointing reproduction of the Koda-
chrome original” (at rp. 25).
No. 2]
CONSUMER PROTECTION
Others again, like J.A.C. Brown,30 argue that modern advertising
is not nearly as great a social evil as critics assert. Brown argues
that a man’s essential or “nuclear” personality is established at an
early age and the kind of “conditioning” involved in advertising
can rarely change this. It can only encourage him to indulge already
existent psychological needs etc., and what is wrong with this?31
Even if the premise here is sound, this view is still suspect in that
it implies that a person should be entitled to indulge every psycho-
logical impulse that occurs to him. Has society yet become that per-
missive?
An interesting and rather unorthodox
in defence of
modern advertising has recently been developed by an Italian writ-
er, Giancarlo Bruzzi. 32 Bruzzi argues that advertising, so far from
creating social values, simply reflects the values that already exist
in society.33 Those who wish to regulate advertising are really pro-
testing (in a futile way) at the social values which it reflects:
thesis
30 Techniques of Persuasion, (1963).
31ibid., chap. 7. Martin Mayer, Madison Avenue, U.S.A.,
(Hamper, Row),
argues a similar thesis: “Adveratising is the wind on the surface, sweeping
all before it when it blows with the tide but powerless to prevent a shifting
of gTreater forces” (at p.
1).
Mayer also argues, rather more dubiously, that modern advertising finds
a justification in the concept of an “added value”:
“Whenever a benefit is promised from the use of a product, and the
promise is believed, the use of the product carries with it a value not inherent
in the product itself… The fact that the value is fictitious as perceived by
the consumer does not mean that it is unreal as enjoyed by the consumer. He
finds a difference between technically identical products because the advertising
has in fact made them different” (at p. 311). “Many people will object that
adverUsing creates “false” values for a -product, but in an economic context,
it is unimportant whether a use value enjoyed by a consumer is true or false.
Outside standards of judgment cannot be applied to assess the reality of private
gratifications. The history of human vice indicates -that values most widely
regarded as false will always seem real enough to command a price in the
market place. The truth or falsity of advertising values is a matter of individual
opinion, not a subject for objective analysis” (at p. 315).
32Advertising; Its Cultural & Political Effects, (University of Minnesota
Press, 1968).
35 Brown, op. cit., n. 30, at pp. 157, 310 et seq., and Mayer op. cit., n. 1, at
pp. 315 et seq. argue the same point.
The point carries some force. The principal thesis of Thorstein Veblen in
The Theory of the Leisure Class, written in 1899, revolves around his concepts
of “pecuniary emulation”, “conspicuous consumption”, “the pecuniary standard
of living” and “pecuniary canons of taste”. Veblen complained, in much the
same terms as modern writers such as Galbraith, Fromm, Packard, etc., about
consumption for status. The paraphanalia of status may have been a little
McGILL LAW JOURNAL
[Vol. 16
purely informative –
Advertising proposals made by those who want advertising to be truthful
-and honest –
are, in the last analysis, only compro-
mises… .4 The compromise solution to the moral problems of advertising
is dubious from every point of view, and especially the political one. Adver-
tising that dissociates itself from the values of the society in which it
acts –
here neocapitalism with its faulty competition, its economy and my-
thology of welfare, its strong horizontal and vertical social statification –
and
at the same time -tries to sell goods that are a diret result of this context,
supports only the negative aspects of that society. It does so by allowing
the values of the society to operate more
to persist
longer… 05
insidiously and
We can Tightly ask the advertiser to respect individual values in his
messages if we can accept the fact that the individual we speak of is no
longer the one delineated by humanistic culture. Moral complaints against
advertising, based on individualistic ethics and making accusations against
an instrument that works in a socially valued ethic, can only create confusion.
To consider these complaints, advertising would have to reject the values
of society, deny its own history, promote the reform of individualistic ethics,
or revolutionize existing society.3 6
Bruzzi argues that advertising is neither licit nor illicit, good
or evil, in itself, but only relative to a context or system of values.3 7
He argues that the true social function of advertising should be
seen as the wearing out, the consumption, of the values of the so-
called “neocapitalist” system:
Man must go on consuming the goods of the present, and many of those
of the future; he must go on consuming the doubtful comfort, doubtful
beauty, doubtful justice, and other new aspects, marked and insidious, of
privilege. Man is engaged in a race that can end in his victory or his
destruction. He must consume wildly, consume so frantically that he undoes
the technocrat’s arrogance, an arrogance most of us have assumed as our
own. Man must show the technocrat how impotent he really is; the technocrat
must have undeniable proof of his inability to “satisfy” in the serious sense
of the word … 38
large mansions, liveries, servants, banquets, hunting, elaborate
different –
dress, etc. –
but the psychology seems to have been the same. Veblen argues
that the desire to consume for status is in fact -traceable -to the predatory
instincts of ancient man. Certainly, it seems long to precede the advent of
modern advertising. Bruzzi, op. cit., n. 32, argues that what has made the con-
sumption ethic more prominent today is not advertising but the fact of affluence
itself. Modern technology has enabled people to indulge their desire to consume
more easily than formerly.
34 Bruzzi, toc. cit., n. 32, at p. 28.
35 Ibid., at pp. 31, 32.
3 Ibid., at p. 124.
37 Ibid., at p. 140.
3 8Ibid., at p. 137.
No. 2]
CONSUMER PROTECTION
89
Informed, courageous advertising men also look to this new man when they
work to fulfill all the promises of technocratic society, helping to bring the
moment of its death closer ….
On this view, advertising will destroy the value system upon
which it is premised. The system destroys itself. A revolution in
social values cannot be legislated. We must wait for the apocalypse.
A difficulty with all these views of the role of advertising in
the formation of social values, and particularly of consumer wants,
is that they tend in each case to be a priori in nature. Precisely
what impact advertising has in this respect, and thus on the bar-
gaining process in the consumer market-place, can only be deter-
mined by detailed empirical research. So far, speculation and dogma
have been accorded a priority.40
However, we are not here required to come to a concluded view
on this debate. The essential question that arises in relation to
advertising when evaluating the viability of a philosophy of infor-
mation as a basis for a programme of consumer protection is the
kind of information modern advertising makes available to a con-
sumer, and deficiencies in it.
One point about modern advertising which is beyond dispute
is that for the most part it does not purport to be informative, that
39 Ibid., at p. 141.
Others have seen the end of advertising in other ways. Galbraith in The
Affluent Society writes (at p. 161):
“In a society where virtuosity in persuasion must keep pace with virtuosity
in production, one is tempted to wonder whether the first can forever keep
ahead of the second. For while production does not clearly contain within itself
the seeds of its own disintegration, persuasion may. On some not distant
day, the voice of each individual seller may well be lost in the collective roar
of all together. Like injunctions to virtue and warnings of socialism, advertising
will beat helplessly on ears that have been conditioned by previous assault
to utter immunity. Diminishing returns will have operated to the point where
the marginal effect of outlays for every kind of commercial persuasion will
have brought the average effect to zero. It will be worth no one’s while to
speak, for since all speak none can hear. Silence, interrupted perhaps by brief,
demoniacal outbursts of salesmanship, will ensue.”
Marshall McLuhan in Understanding Media, (Signet ed.) at p. 202 states:
“When all production and all consumption are brought into a pre-established
harmony with all desire and all effort, then advertising will have liquidated
itself by its own success.’
This view is, of course, inconsistent with the norm of expanding production
which will always require new wants to be contrived to consume the additional
consumption.
40 The economic implications of advertising have been left out of account
here because they do not bear directly on the question of the impaet of advertising
on the bargaining process. For a discussion of economic considerations, see
O.J. Firestone, op. cit., n. 25.
McGILL LAW JOURNAL6
[Vol. 16
is, it does not convey information of facts about a product which
are capable of verification by reference to any kind of objective
criteria. 41 Today, I am encouraged to buy my breakfast cereal be-
cause it “snaps, crackles, pops”, my Coke because it is “the real
thing”, my floor cleaner because it is a “white tornado”, my Buick
because it is “something to believe in”. As Boorstin says, “Celebrity
is made by simple familiarity induced and reinforced by public means.
The celebrity [whether person or product] is the perfect embodi-
ment of tautology: ‘the most familiar is the most familiar’ “,.42 Some
goods, for example, now carry on their packaging: “As Advertised in
Life”. The depths of irrelevance have been plumbed.
The law has been slow to catch up with the realities of modern
advertising. Even today, the burning question in law reform circles
still seems to be, what is to be done about false and deceptive
advertising in the traditional senses of those terms. Hence, the
Canadian Minister of Consumer and Corporate Affairs has declared
that the main objectives of recent false advertising legislation are
the devices of bait and switch, “free” offers, deceptive use of con-
tests, 43 etc. However, these represent an infinitismally small propor-
tion of all modern advertising. The preoccupation of the law with
them demonstrates once again its limitless capacity for making ir-
relevant responses to highly relevant problems. To quote Boorstin
again:
The broadest of the old distinctions which no longer serve us as they did
is the distinction between ‘true’ and ‘false’. Well-meaning critics (including
many in the advertising profession) who say the essential problem is false
advertising are firing volleys at an obsolete target. Few advertisers are
liars. A strong advertising profession has its own earnest ethic. Lies are
not so readily diffused through newspapers and magazines, over radio and
television. They are not so eagerly believed. The ‘evils’ of advertising could
be easily enough reduced if they came only from -lies. The deeper problem is
quite different. In some ways it is quite opposite. Advertising befuddles
our experience, not because advertisers are liars, but precisely because they
are not. Advertising fogs our daily lives less from its peculiar lies than from
its peculiar truths. The whole apparatus of the Graphic Revolution has put
a new elusiveness,
truth in
twentieth-century America. 4
If it is accepted that advertising today is either not at all or at
least not fully informative about the qualities possessed by products,
a philosophy of information would justify the intervention of the
law to remedy this deficiency. What might be done?
irrideseence, and ambiguity into every-day
41 See Boorstin, op. cit., n. 29a, Fromm, Escape from Freedom at p. 148 ot seq.
42 Boorstin, op. cit,, n. 29a, at p. 70.
43 Press Release, July 31, 1969.
44 Boorstin, op. cit., n. 29a, at pp. 216, 217.
No. 2]
CONSUMER PROTECTION
First of all, it should be noted that the law in redressing in-
formational deficiencies is likely almost invariably to find itself
on the side of utility. This is not because the law is committed to
a utilitarian philosophy of consumption but because industry will
almost never find it to its advantage to emphasize utility in its
advertising. For example, it pays industry to emphasize the over-
whelming beauty of the yearly styling changes in its motor-cars
rather than to emphasize that a car will last thirty years –
the
former sells more cars. In the law’s few ventures into the market-
place in this respect, this point has been borne out. For example,
the -law in many jurisdictions 45 now requires advertisements relating
to the availability of credit in some cases to set out the effective
interest rate on the credit available. Thus an airline or finance
company can advertise the virtues of a holiday in Bermuda on a
“fly now, pay later” plan, but it may have to point out at the same
time the disagreeable fact that interest will be charged at 18%
per annum effective. Similarly, some jurisdictions now require
dealers in second-hand cars to furnish reports on their cars to
consumers at the time of a sale.46 These reports must disclose the
state of repair of certain components, principally the safety compo-
nents of the car. Thus, a dealer can advertise a car as the sexiest thing
on four wheels but is required by the law at the same time to point
out that the state of the steering system renders the car unfit to
drive. Again, in the present anti-smoking campaign of the Canadian
Government, television advertisements axe shown depicting a woman
in a gas mask in a smoky restaurant; these contrast with industry’s
representation of a blond in a woodland lighting up a Kool.
What are some of the problems involved in ensuring that adver-
tising presents all the facts about a product with equal force so
that an informed shopping decision can be made?
The Canadian Government’s anti-smoking advertising campaign
illustrates these problems well. If it is sought to emphasize the health
hazards of smoking as strongly as industry emphasizes its attractions,
then the State presumably has to be prepared
to advertize as
effectively –
in terms of frequency, sophistication of presentation,
exploitation of psychological fears, etc. Two consequences would
then have to be contemplated. First, the advertising bill the consumer
would directly or indirectly have to carry would double. Instead
of paying perhaps 20 cents in the manufacturer’s sales dollars, the
4 5 E.g., all Canadian jurisdictions except Quebec, but see now Quebec Bill 45
46 E.g., s. 10, Manitoba Highway Traffic Act 1,966; s. 49, Ontario Highway
(1970).
Traffic Act 1068.
McGILL LAW JOURNAL
[Vol. 16
consumer would be paying 40 cents. But then, in that case, would
it not be better simply to ban all cigarette advertising? However,
this again would involve us in the issues raised in the first part
of this article. Secondly, the process of conditioning and counter-
conditioning the consumer, rather than enlightening him, may
instead confuse him and, like Pavlov’s dog, simply make him neurotic.
If these two factors rule out a counter-advertising barrage by
the State, then retreating a stage, one might ask whether industry
itself might be required to present more complete information about
its product. This might be thought to be in line with requirements
relating to advertising of credit terms and safety reports about
second-hand cars. First, though, it would seem unrealistic to expect
industry to present, side-by-side, two opposing characterizations of
its product setting out vices and virtues. To require industry in
its advertisements to depict at the same time the blonde in the
woodlands lighting up a Kool and the woman in the gas mask in
the smoky restaurant seems somehow repugnant to common-sense.
On the other hand, to allow industry to include in its advertisements
simply, e.g. a dessicated grade stamp indicating relative nicotine
and tar content is to allow the virtues of the product to be presented
much more forcefully than its vices. To that extent, the consumer
is not as well-informed about some features of the product as others.
To that extent his shopping decision will not be a fully informed
one. Another solution may lie in the direction suggested by the so-
called “fairness” doctrine applied by the U.S. Federal Communications
Commission. This requires that the public media afford reasonable
opportunity for the presentation of contrasting viewpoints on
controversial issues of public importance. The doctrine has recently
been applied to commercial advertising for the first time, in the
case of cigarette advertisements. Television stations have been
required to donate “free” time to anti-smoking groups to broadcast
anti-smoking advertisements. 46a While this doctrine seems to meet
some of the foregoing difficulties, the two objections to a counter-
advertising barrage by the State which were noted above would seem
equally to apply here. In addition, there is the problem of finding
enough organizations (essentially non-profit making) who are pre-
pared to counter-advertise in every case where an advertiser’s in-
formation about his products is inadequate. 4
46aBanzhaf v. F.C.C., 405 F. 2d 1082 (D.C. Circ. 1068).
47 A compromise position might be to argue that advertising should be purely
informational. Bruzzi op. cit., n. 32, at p. 28 et seq. argues -that such a proposal
is entirely unrealistic a) because
it would involve repudiating social values
reflected in products and would instead emphasize values which society at
No. 2]
CONSUMER PROTECTION
Cigarettes have, of course, only been used as an example. The
same problems arise right across the whole range of consumer
products, 48 although obviously they increase in difficulty with the
complexity of the product. For example, how is it to be ensured
that I will be as well-informed about the utilitarian and functional
aspects of my Buick as about the proposition that it is “something
to believe in”. The law can say, without detracting from the propo-
sition that it is something to believe in, that you should, in order
to make an informed decision, also know about X, Y, and Z. But
how is this additional information to be got to a consumer? How
are the technical details of the car’s performance, durability, safety,
economy to be presented to the consumer? Dramatically? Technically
(and probably incomprehensibly)? Or by some system of general
grading which, as in the case of cigarettes, would be shown in
the advertisement. But who does the grading? Who establishes or
verifies the criteria? On the other hand, to say that for this kind
of information, the consumer must be resigned to consulting Con-
sumer Reports, motoring magazines, or government Consumer Affairs
Department hand-outs is to concede that in these matters consumers,
generally, must be prepared to be less well informed. First, this
kind of material, relative to commercial advertising, reaches only
a very small section of the population. Second, that portion it does
reach, because of its form relative to commercial advertising, it
reaches much less effectively. 49
b) because
to
present regards as imrelevant;
deal with concepts which are not necessarily rational or objective anyway,
e.g., in the case of a car, functionality, efficiency, comfort, performance,
economy, styling etc. How are variable and relative concepts such as these
to be dealt with “rationally”? In other words, “facts”, both in their statement
and selection, cannot be “neutral” as between various values.
information would be forced
481t is difficult to understand how the Canadian government can justify
its decision to isolate cigarette smoking for special treatment. Why not excessive
eating, excessive drinking, driving at excessive speeds, excessive anything?
Are the vices attaching to cigarette smoking any greater or any less well-known
than those attaching to a host of other products?
49 As writers such as Brown op. cit., n. 30, and David Riesman, The Lonely
Crowd, (1050) point out, group habits and values are far more important in
sharping the life-pattens of people (“other-directed” people) than any influence
the media is likely to have. The odd communique from the Consumer Affairs
Department received by a small percentage of a given social group is unlikely
to affect habits of that percentage significantly. Moreover, members of social
groups least in need of assistance are those most likely to avail themselves of
these information services.
The problems involved in effective communication of information to all
relevant social groups in a community are well canvassed by the Canadian
Federal Government’s Task Force on Government Information in its Report,
To Know and Be Known (1,69), Vol. I.
McGILL LAW JOURNAL
[Vol. 16
Thus, looking at the advertising stage of the bargaining process
in the typical consumer transaction, from the point of view of a
philosophy of information, we find that the difficulties involved in
remedying informational deficiencies are enormous. None of these
problems, of course, arise in the model earlier constructed of a
bargain struck in a purely commercial market-place.
At the first stage of the consumer bargaining process then, a
major strike must be registered against a philosophy of information.
(b) Point-of-Sale Informational Problems
The next stage in the bargaining process occurs at the point of
sale. Apart from the question of alluring packaging, which is, of
course, simply a form of advertising and raises the same issues as
have been dealt with in that context, the essential question here is
whether, in the typical consumer context, a buyer at this stage in
the bargaining process, is given enough information about competing
products to make a discriminating choice.
Let us first consider fairly basic commodities such as might
commonly be bought in a supermarket context. How well is the
consumer able to discriminate between competing brands of e.g.
breakfast cereal, soap powder, canned fruit, headache cures?
An initial problem of considerable magnitude
is the quanti-
ty/price correlation. If, for example, competing brands of canned
peaches are retailed as follows:
30 ounces for 50 cents
(i) Brand A
(ii) Brand B
28 ounces for 45 cents
(iii) Brand C 26 1/_ ounces for 40 cents
33 ounces for 60 cents,
(iv) Brand D
how does the average consumer in the typical supermarket environ-
ment where protracted calculations are not feasible, determine the
best quantity/price ratio? The answer is, of course, that he cannot
efficiently do so. A recent New York City Consumer Affairs Depart-
ment study indicates that experienced shoppers had been unable to
choose the cheapest variety of products in more than 40 per cent
of the cases tested, and that their errors had cost them more than
10 cents in the dollar.5″ Virtually nothing so far has been done by
the law to meet this problem. The first faltering steps were recently
taken by New York City where regulations have been passed
requiring the price per pound or quart or unit to be stated on
bread, meat, fresh cereals, cooking oils, soft drinks, beer, napkins
50 Now York Times, Jan. 25, 1970, at pp. 1, 33.
No. 2]
CONSUMER PROTECTION
and facial and toilet tissues. These regulations have come under
heavy attack from industry and their validity is at present the
subject of a legal challenge.51 Obviously, they only purport to cover
a fraction of the total range of consumer commodities. Also, by
requiring pricing per unit quantity instead of the standardising of
packaging sizes, 5ia the position is made more complicated than it ‘needs
to be, and in some cases where a commodity shows both the price
for the whole unit and the price per unit quantity (e.g. pound or
ounce), the consumer may simply be confused.
However, assuming that the problem of the quantity/price corre-
lation can be overcome, a further factor implicit in any prudent
shopping decision must be considered –
quaJity. A prudent shopping
decision involves a three part correlation, that of quality, quantity and
price. How then does the consumer fare for information in discrimi-
nating between the quality of competing brands of products ? How
does he know which breakfast cereal is most nutritious, which soap
powder is most effective, which brand of canned fruit is the best
quality, which head-ache cure is the most efficacious?
is no
answer to say that often manufacturers set out on the packages
the chemical or other components in their products, and that the
law could perhaps insist on this. To tell the average consumer that
X tooth paste contains “hexo-chlorophene for whiter teeth” (and four
other named components), or that Y soap powder contains “bio-
enzymes” (and other components) “for a cleaner wash” tells him
nothing. A statement on head-ache cures of the chemical elements
in their composition is meaningless to him; for example, if he was
fully informed, instead of buying Bayer Aspirin at 54 cents a unit,
he might buy the same product under its generic name for 14 cents
a unit. The fact is, he generally doesn’t.
It
Thus, if errors in the quality/cost correlation are costing con-
sumers 10 cents in the dollar, errors in the much more difficult
correlation of quality/quantity/price obviously must have a major
multiplier effect on this figure.52
How can the law deal with this problem? The solution most
frequently suggested is that of grading. Consistent with the thesis
that the law is entitled to complete the deficiencies in the picture
of his products left by the manufacturer –
deficiencies which, as we
have seen in the nature of things, will usually go to the question
of utility –
the law would seem entitled to insist on the grading
5lId.
ria Cf. packaging legislation presently before the Canadian Parliament.
52 Senator Philip A. Hamt recently estimated that between $30 and $40 of
every $100 spent by consumers is wasted: New York Times, March 8, 1970.
McGILL LAW JOURNAL
[Vol. 16
of products by reference to their nutritional value (in the case of
foodstuffs), efficaciousness (in the case of soap powder, head-ache
cures, tooth-pastes) etc.
However, there are a number of difficulties in the way of large-
scale grading. The first is an organisational one. If the State itself
is to undertake the task of doing the grading, a large bureaucracy
would be necessary. Even if the State were to settle specifications,
and leave industry to do its own grading, a large bureaucracy would
still be necessary to formulate specifications and supervise their
application.
Most importantly, the impact of such a system on individual
freedoms would have to be evaluated. Commenting on a bill proposed
by Senator Philip A. Hart in the U.S. in 1968 which would have set up
a government consumer service foundation to rate products according
to the results of government tests, and disseminate the information
by means of a computerized vending machine, Bishop & Hubbard,
writing from a consumer standpoint in Let the Seller Beware, state:
By definition, the process is a discriminatory one, based on the judgments
of human beings in a government lab. The possibilities of corruption are
infinite. As one critic of the plan observed: ‘A $10,000 bribe is still cheaper
than a one minute spot on the Johnny Carson Show’. The possibilities for
argument are also endless; there are limits on objectivity in rating products.
Different consumers look for different things in their purchases. 53
Even if the law confines its rating objectives to what may be
termed utilitarian or functional considerations, which may be thought
to be capable of some kind of objective measurement, and even in
relation to quite basic commodities, the above objections can still
be sustained. For example, in relation to breakfast cereals, what
is the most nutritious combination of vitamins, proteins, etc. ? Medical
men doubtless differ. In relation to soap powders what tasks is it
fair to ask a given soap powder to perform? Is it fair to compare
an all-purpose soap powder with a specialised soap powder i.e., when
are we dealing with the same commodity line? In relation to patent
head-ache pills, what kinds of headaches is it fair to expect the pills
to cure?
These questions become much harder the more complex the
commodity. For example, in relation to motor-cars, when is one dealing
with comparable types of vehicle for the purposes of establishing
a grading category? What driving treatment and conditions is it
fair to subject a car to ?-
53 Op. cit., n. 7, at p. 190.
54 See also on this point, n. 47 above.
No. 2]
CONSUMER PROTECTION
Would we, in setting up a comprehensive government grading
system, be creating a huge and largely non-accountable bureaucratic
machine? Would this be part of the “new despotism” of which Lord
Hewart once warned? 55
One final difficulty with a grading system is that it only tells
a consumer that there is some difference in quality between given
products but not, directly at least, how much difference. If, for
example, a consumer is faced with a choice between two five pound
packets of soap powder, one Grade A at $1.00, one Grade B at 90
cents, which represents the best buy? Unless the consumer knows
as well the difference, in terms of quality, between the two grades,
he cannot solve this question. Moreover, it is impossible to conceive
of any practical way in which this additional information could be
conveyed to him.
None of these problems, of course, arise in a purely commercial
transaction like the model earlier given, where both parties will
generally have the expertise necessary to make an accurate quali-
ty/quantity/price correlation.
Let us now move briefly outside the supermarket context and
investigate the consumer’s position qua information
in a large
single-unit purchase on credit, as for example, in the purchase of
in the quality/price correlation as
a car. The same difficulties
have already been examined again arise here. In
the case of a
second-hand car, the difficulties are compounded because the buyer
will not even have materiall such as the Consumer Reports etc.
available to him from which to obtain an assessment of the car’s
quality. A dealer derives his livelihood from selling cars and pre-
sumably knows a great deal more about a car’s quality or condition
than a consumer who generally professes no expertise in the matter.
The parties are not equally well informed about the product. The
argument that the consumer can take expert advice ignores the
realities of the market-place. He is urged to “buy now, pay later”,
to “drive home in a new car today”; the need for independent
initiatives is depreciated: “Our cars are production-line reconditioned
and fully warranted for your complete protection”.
These difficulties –
aside,
additional difficulties arise in the present context out of the issue
which are not new ones to us –
55 The New Despotism, (1929). For more recent, empirical studies of regulatory
agencies, see Cary, Politics and the Regulatory Agencies, (McGraw-Hill, 1067);
Kolm eier, The Regulators, (Harper & Row, N.Y., 10.69). The very cogent
arguments adduced. by Milton Friedman, Capitalism and Freedom (Chap. IX),
against occupational licensure or certification apply mutatis mutandis t) a
system of either minimum standards or grading for goods.
McGILL LAW JOURNAL
[Vol. 16
of when the bargain between the parties is really struck. Let us
assume the case of a man considering the purchase of a second-hand
car from a dealer. He will probably ask the dealer certain questions
about the car and the price in the dealer’s yard, and will receive
certain assurances and representations. He will perhaps take the
car for a short test drive, and then in effect he says, “I will take it”.
Psychologically, from the consumer’s point of view, the deal is struck
at that point, and it is struck on the basis of the various verbal
assurances and representations that have passed between the parties.
However, the bargain that the law recognises is not this bargain
at all. It is the bargain which the consumer is conclusively presumed
to have assented to when he subsequently signs a standard from
contract which is the same for every transaction regardless of what
individual assurances etc. that the dealer may have given and will
indeed specifically exclude liability for these. The information about
the car that the dealer has in fact given the consumer and upon
which the consumer has in fact relied is treated by the law as
totally irrelevant to the determination of the nature of the bargain.
Legal rules here conspire against a philosophy of information:
first, the law conclusively presumes a man to have assented to
propositions in the written agreementO which as a matter of common,
and indeed judicial observation, 7 he has not. Secondly, by means
of the parol evidence rule, it steadfastly refuses to listen to evidence
as to the real bargain struck between the parties. Clearly, if the
law here was concerned to promote a philosophy of information, it
would reverse the operation of the parol evidence. It would provide
instead that wherever the written agreement contradicted the verbal
bargain, the verbal bargain should prevail.
These problems again do not arise in our model of a commercial
transaction. There both business parties, and their advisers, will
ensure that the written agreement finally prepared
reproduces
exactly the terms which have been previously negotiated. This is
in contrast to the standard form agreement in a consumer transaction
which, as we have seen, is specifically designed not to reproduce
the real bargain struck between the parties.
The importance of a realistic analysis of the bargain striking
process in consumer transactions is also demonstrated in relation to
the questions of disclosure of effective interest rates and dealers’
commissions. At present those jurisdictions requiring disclosure of
56 L’Estrange v. Graucob Ltd., [104] 2 K.B. 394.
57 See e.g. Lord Devlin in Mcutcheon v. David MacBrayne Ltd., [1064] 1
W.LR. 125 (H.-L.) at P. 133.
No. 2]
CONSUMER PROTECTION
effective interest rates for the most part require this information
to be disclosed in the formal contract between the parties. But if the
point of the disclosure is to enable the consumer to shop comparatively
for credit, the information comes too late. It is presented to the
consumer after, to his way of thinking, the bargain has been closed.
Industry can happily accede to disclosure requirements of this kind
and cry all the way to the bank. It can be confidently predicted
that this information will make almost no impact at all on consumers’
shopping habits.
On the other hand, there is no easy way of ensuring that this
information does play a part in the real bargaining process. How
could this be done? It is not reasonable to require credit grantors
to advertise their rates because they might, quite reasonably, wish
to fix a rate in each case appropriate to a particular consumer’s
creditworthiness. 8 The law could scarcely require the whole range
of rates, and the criteria applicable to each, to be set out in ad-
vertisements.
The same problem arises with the suggestion sometimes made that
the way of dealing with dealers’ commissions on consumer finance
referrals is to require disclosure in the formal contract between
the dealer and the consumer. This is too late, of course, for the
consumer to know that the dealer’s advice as to sources of credit
was not disinterested. The deal is already closed, in the consumer’s
view. Again, though, what practicable means are there for conveying
this information to him at an earlier stage?” 9
Even where the law has accepted that information by itself as
a policy is inadequate and has adopted a policy of regulation, e.g.
in relation to certain implied terms and in relation to creditors’
remedies, the solutions adopted often ignore the realities of the
market-place. For example, the British and Australian Hire-Pur-
chase Acts imply certain non-excludable terms as to quality into
hire-purchase agreements relating to new goods. 60 Finance companies,
however, are not required in any way to inform consumers of their
rights. Thus a standard clause in a hire-purchase agreement reads
58Some jurisdictions now require advertisements which mention the rate at
which credit is available, or pat of the terms of a typical proposal offered, to
set out the true rate and the full terms. However, credit grantors axre still left
free not to disclose their
nterms at all or to advertise only the general availability
of credit.
59 For a discussion of these problems, see the Adelaide Law School Report on
Consumer Credit, op. cit., n. 2, Chaps. IX and XI.
60 U.K. Hire-Purchase Act, 18-14 Eliz. II, c. 66, ss. 17 and 18. Australian
Uniform Hire-Purchase Acts, s. 5.
McGILL LAW JOURNAL
[Vol. 16
(1)
something as follows: “All conditions and warranties, express or
implied, statutory or otherwise, except as may otherwise be provided
by the Hire-Purchase Act, are hereby excluded”. The hypotheses upon
which the law’s acquiescence in this state of affairs is based are
staggering:
that the consumer who has bought defective goods
will know that the terms “condition” and “warranty” and the clause
containing them deal with the question of defects;
(2) that having
worked this out, he will understand that most of them have been
excluded anyway;
(3) that nevertheless he will understand that
the Hire-Purchase Act may have salvaged some glimmer of hope for
him;
(4) that he will go to the Government Printer’s office and buy
a copy of the Act; (5) that he will be able to find his way through
and understand what is essentially a lawyer’s document, and discover
that he may have a cause of action;
that he will then take
his case to a lawyer.
(6)
These problems are neatly avoided by this legislation in the case
of second-hand goods. There, the statutory implied terms as to quality
may be excluded by a specific acknowledgment to that effect by the
consumer in the agreement. The terms are, in practice, invariably
excluded. The consumer signs the acknowledgment, as he signs the
agreement itself, in the belief that the whole exercise is a purely
formal tail-piece to a bargain struck some time before. The difficulty
of coping with exemption clauses by a philosophy of information is
further illustrated by the recent Manitoba Consumer Protection Act
(1969). S. 58(1) of the Act provides that “notwithstanding any
agreement to the contrary”, there is implied in every retail sale
of goods “a condition that the goods are of merchantable quality,
except for such defects as are described”. S. 58 (2) states that “it is
not necessary to specify every defect separately, if the general
condition or quality of the goods is stated with reasonable accuracy”.
On the face of it, these provisions look reasonable enough: disclose
or perish. But, firstly, disclosure is provided for only in the standard
form agreement and thus, no matter how detailed, comes after the
event, so to speak. Secondly, what is a “defect”? In the case, for
example, of second-hand cars, where does wear and tear stop, and
where do defects start? A used car, by definition, must be more
used than a new one. That the car will be worn in some, if not most,
respects could not sensibly be required to be disclosed. Again, what
is sufficient disclosure of a defect? E.g. that the clutch is “worn”?
How “worn”? What of the case where the goods do not necessarily
have defects but the seller suspects they could have (e.g. in the case
of second-hand goods, fire stock, “seconds”, etc.)? Can or should
a seller be able to disclose and exclude liability for possible defects?
No. 2]
CONSUMER PROTECTION
Would this, however, lead to general exclusions of liability such as
occur at present? 61
to Hirers”, which, under the Australian Hire-Purchase
Apart from exemption clauses, the same unrealistic attitude to
information is reflected, for example, in the Second Schedule notice,
“Advice
Acts, must be given to a hirer shortly after entering into a hire-
purchase agreement. This notice purports to summarize the principal
statutory rights and obligations of a hirer. As an example of a piece
of helpful advice, the following is worth study: “With the written
consent of the owner you can assign your rights under the hire-
purchase agreement and he may not unreasonably refuse his consent.
For details of the procedure of Assignment see Hire-Purchase
Agreements Act, 1960, section 9”.
The foregoing legislation is, however, moderately progressive. By
way of contrast, for example, the Ontario Consumer Protection Act, 2
1966, which confers a right of cancellation on a -consumer in respect
of door-to-door sales, does not require any notice at all of this right
to be given to him. This piece of legislation no doubt satisfies the
honour of door-to-door salesmen while doing minimal damage to
their pockets. The consumer is now fully protected; any further
complaints that he has will necessarily be unjustified.
In evaluating the viability of information as the basic philosophy
of consumer protection, it is of note that the law itself has, perhaps
surprisingly, been known to accept that there are large parts of a
so-called “bargain” in a consumer context which are not bargained
about at all. Llewellyn has pointed out that “any contract *with
boiler-place results in two several contracts: the dickered deal, and
the collateral one of supplementary boiler-plate”. 3 The law has
recognized this, and in consumer credit transactions, for example,
has recognized that a consumer will rarely be sophisticated enough,
or pessimistic enough, to bargain about the consequences of his own
non-performance. Accordingly, now the law in almost every legal
jurisdiction regulates the “supplementary boiler-plate” and pre-
scribes, with greater or lesser strictness, a creditor’s remedies conse-
61 For recommendations similar to the provisions of the Manitoba Consumer
Protection Act, see the recent report of the U.K. Law on Exclusion. Clauses in
Contracts op. cit., n. 2, and the Adelaide Law School Report on Consumer Credit
op. cit,, n. 2, Chaps. XII and XIII.
Another defect in the Manitoba provisions is that they do not appear to cover
limitations of liability -s well as exclusions of liability.
02 1966 S.O., 1415 Eliz. II, c. 23.
63 KaI N. Llewellyn, The Common Law Tradition, at rp. 371.
McGILL LAW JOURNAL
[Vol. 16
quent upon a consumer’s default. The philosophy of information has
here been found wanting.
Another problem which must be mentioned briefly in this context
is that of suit. Whether rights possessed by a consumer are bargained
for or conferred by statute, they will be of no practical value to
him unless he has the ability to litigate them. All the information
in the world cannot solve this problem. The reluctance of consumers
to sue is notorious. Caplowitz, in his study, 1 asked all interviewees:
“Where would you now go for help if you were being cheated by a
merchant or salesman?” 64 per cent replied that they did not know.
A recent study of cases in the inferior courts of Toronto showed
that only 22 consumer credit claims out of a total of 186 were
disputed in actions brought in the city’s County Courts, and only
10 out of 110 in actions brought in the Division Court.61 It is a
mistake, moreover, to regard this problem as being a function only
of poverty. While it is certainly more acute in that case, it pays
nobody in our present system of administration of justice to litigate
the usual kind of consumer claim. The costs of the action make it
logistically pointless to pursue most claims. Despite the size of the
amounts commonly involved, the claims may nevertheless in some
cases be of great economic significance to the consumer involved.
To a man who has bought a defective motor car which requires, say,
$300 worth of repairs to put it on the road, the existence of a worth-
while claim against the seller may be a matter of financial life or
death. Other factors, of course, besides the economic ones also explain
the reluctance of consumers to sue –
delay, the hazards and un-
pleasantness of litigation, the economic size of the opponent, the
difficulty and expense of taking time off work to attend a hearing,
etc. Few of these can be removed by any system of information.
The expense involved in so resolving this problem of suit that
everybody finds it worthwhile to pursue a consumer complaint, what-
ever the detailed solutions adopted, is likely to be high. Could our
social priorities justify this?
Before leaving the question of information as the basic philosophy
of consumer protection, two general comments must be made. First,
if a philosophy of information were to prove effective, this would
necessarily mean the resurrection, in some measure at least, of the
concept of utility as a social value. If more balanced information
64 op. Cit.
65 Conducted by Professor W.A. W. Neilson, Osgoode Hall Law School, cited
by Professor J. S. Ziegel, Consumer Credit Regulation: A Canadian Consumer-
Oriented View Point (166), 68 Columb. L.R. 488, at p. 515. See also the study
undertaken in the U.K. by Susan Marsden-Smedley, Focus, July, 1069.
No. 2]
CONSUMER PROTECTION
is furnished to a consumer and utility is stressed as strongly as
non-utility, one would expect some change in the consumption
patterns of consumers. 0 These changes in consumption patterns and
the return to utility as a major criterion of consumption could have
profound effects on production. A very large surplus of productive
capacity in the private sector could be created which would in
turn create the same problems of economic security, unemployment,
etc., as were discussed earlier in this article. Thus the problems that
were dealt with there are not entirely avoided by turning from a
philosophy of regulation to one of information.
Secondly, as to whether a philosophy of information can be
made effective, it is submitted that the conclusion must be that at
almost every point in the bargaining process in the typical consumer
transaction, it is impossible to devise ways of conveying to a con-
sumer relevant information in a meaningful form. With the best
will in the world, the model of the genuinely competitive market-
place cannot seem to be made to fit. The mechanism of the market
does not seem capable of adaption so as to produce consumer trans-
actions which are completely “bi-laterally voluntary and informed”.
IV. Conclusion
This essay has sought to point to some of the difficulties involved
in defining an effective and workable philosophy of consumer pro-
is not suggested for a moment that the approaches
tection. It
examined represent mutually exclusive alternatives, or that combi-
nations or compromises amongst approaches are not possible. To
acknowledge that, however, is not to minimize the importance of
constructing an overall, long-term philosophy of consumer protection.
If this is not done, we cannot hope for any direction in future
reforms. Without constructing a model of an ideal consumer-market,
we have nothing against which to evaluate the worth of existing or
proposed measures nor any proper terms on which to rationalize
them when attacked. Also, we risk internal inconsistences of policy
within the law.0 7
(0 Unless the thesis of Bruzzi, supra, at pp. 234 ,et seq. were to prove valid.
Economic measures directed to shifting production and consumption to other
areas would, on this thesis, also fail unless they reflect a corresponding shift
in social values.
07 For example, for the law to condone a system of advertising which emphasizes
only non-utilarian values is inconsistent with a policy of implying terms into
consumer sales which emphasize only utilitarian values. If the attractions held
out by advertising are an irdex of the buyer’s expectations when he makes a
purchase, these implied terms provide no protection at all for the only kind of
expectations that the buyer himself has deemed relevant.
McGILL LAW JOURNAL
[Vol. 16
It has further been sought to show that many of the issues raised
by consumer protection are not solely, or in some cases, even mainly,
the preserve of lawyers at all. Consumer protection raises many
basic economic, social and philosophical issues. On some views, our
economic and perhaps philosophical precepts virtually define consumer
protection out of existence. On other views, consumer protection
could largely be achieved through economic measures. On yet other
views, consumer protection can only be achieved, without State inter-
vention, through a spontaneous revolution in social and cultural
values. On any of these views, the role of the lawyer (and law
reform) in the field of consumer protection would be a relatively
minor one and might perhaps be confined (as it has tended to be
until now) to preventing the traditional forms of fraud.
In closing, it is suggested that when the U.S. Special Committee
on Retail Sales etc. asked itself the question, “Who is to be protected
from what?”, the instinctive reaction of the 20th century liberal that
the question answers itself is not good enough. Examined more
closely, it is seen to be a very good question indeed. That the
massive and mostly miscellaneous “reforms” now being undertaken
fail to articulate a coherent answer to it ought to be occasion for
considerable disquiet.
