This is Part 4 in a 6 part series: click here to read Part 1, Part 2 and Part 3.
This aspect is dealt with in Part ‘F’ of the CPA. Whilst I will focus on only three sections (i.e. 40, 41 & 42) for the purposes of greenwashing, it is worth noting for your interest that this part has lengthy provisions pertaining to pyramid schemes (43), auctions (45) and a much debated consumer issue namely over-selling/booking, especially airlines (47).
So what is ‘dealing’? It is not defined in the CPA so as mentioned before, the meaning of the word as commonly used must apply. The Shorter Oxford Dictionary defines it as ‘bargain, negotiate, attempt to come to terms, conduct transactions’. Whereas the previous section dealt with non-personal interaction such as advertising this section appears to address the personal, physical interaction between buyer and seller. This will by definition include such esoteric issues as body language.
Section 40 addresses the issue of unconscionable conduct. What it fact does is to extend the meaning of the word which is defined in the CPA as follows, namely conduct which is: ‘otherwise unethical or improper to a degree that would shock the conscience of a reasonable person’.
So what does section 40 say about this ‘tongue twister’? It dictates that during the course of marketing (‘promote and supply’), negotiating, ‘enforcement of an agreement’, collection of payment physical force and ‘coercion, undue influence, pressure, duress or harassment, unfair tactics’ must not be used. As you can see it is a pervasive list some of which I am sure all readers have been exposed to from time to time, physically or telephonically.
Note that the list does not stop there! It is also prohibited to take advantage of the consumer’s ‘physical or mental disability, illiteracy, ignorance, inability to understand the language of the agreement….’ – back to the issue of our national languages and the use of plain language.
Selling has thus become a very subjective matter and must be viewed with caution bearing in mind the above challenges. The term ‘know your customer’ is bandied about regularly but given the above it must not be taken lightly.
Section 41 is even more onerous! Words or conduct that fall within the ambit of the following is strictly prohibited:
(a) directly or indirectly express or imply a false, misleading or deceptive representation concerning a material fact to a consumer;
(b) use exaggeration, innuendo or ambiguity as to a material fact, or fail to disclose a material fact if that failure amounts to a deception; or
(c) fail to correct an apparent misapprehension on the part of a consumer, amounting to a false, misleading or deceptive representation, or permit or require any other person to do so on behalf of the supplier.
As all consumers know, there is a plethora of written, visual and verbal sales strategies that incorporate elements of especially ‘exaggeration, innuendo or ambiguity’. If that is used and/or the consumer is misguided and the seller fails to correct that, the transaction may be set aside, monies paid returned and compensation to the consumer be imposed (Section 52).
Section 42 prohibits the presentation, sponsorship of or participation in fraudulent schemes or offers.
So let’s look at some examples of what I believe to incorporate some of the above prohibitions:
The next insert will address fair, just & reasonable T&C.
DISCLAIMER – Each case depends on its own facts & merits. The above does not constitute advice. Independent advice should be obtained in all instances.
By ADV LOUIS NEL, aka Louis-THE-Lawyer