DEFECTIVE PRODUCTS AND CONSUMER PROTECTION: WHAT RELEVANCE OF APPLICATION UNDER CAMEROONIAN LAW
Keywords:
Defective - Product-Consumer-Protection- Cameroonian law- globalization- consumer exploitation-responsibility-profits-legislationAbstract
Over the years, an increasing number of defective and unsafe products have been marketed to make quick profits resulting to widespread consumer exploitation and Cameroon has not been indifferent. Giving the scorge of widespread consumer exploitation, it is no surprise that consumer protection has gained important worldwide. In the age of globalisation, consumer protection guidelines and legislation are necessary at international a d national levels to ensure a safety of consumers. Taking into consideration international and national legislations governing health products; how effective is the protection of consumers agaisnt defective products by Cameroonian law?. The 2011 Consumer Protection law is aimed at protecting consumers by relating business transactions and practices. It provides an overall framework for consumer protection with one of purposes being preventing exploiting or harm to consumers. The Penal code in a bid to protect consumers from defective products, section 258(1) punishes those who are involved in the sales of illegal, counterfeit, falsified and non authorized medications. Section 224 of the OHADA Uniform Act on Commercial Law requires the product to be mechantable, fit and aimed at protecting the consumer. Though these provisions are scattered throughout statute making the enforcement of limited protection it provides, very difficult. Consumers are well protected when they know their responsibilty and fulfill them. As long as Cameroon continues to grow economically, the concept of consumer protection must have a state of constant change.
References
1. Directive 85/374/EEC of July 25 1985, article 2.
2. Law No. 2011/012 of 06 May 2011, Section 2, "Consumer: Any person who uses products to meet his own needs and those of his dependants rather than to resell, process or use them within the context of his profession , or any person enjoying the services provided".
3. Directive 85/374/EEC of July 25 1985, article 6.
4. Directive 85/374/EEC of July 25 1985, article 6 (1).
5. The definition of defect is given by Article 6 of the Directive, according to which a JLTCPL (2020) 45–57 © Law Journals 2020. All Rights Reserved Page 55 product is defective "when it does not provide the safe ty which a person is entitled to expect". With this purpose, all circumstances must be taken into account, including: (a) The presentation of the product (b) its reasonably expected use; and (c) the time when the product was put into circulation.
6. In response to these resolutions, the WHO Expert Committee on Specifications for Pharmaceutical Preparations, which was originally created to prepare The International Pharmacopoeia, has made numerous recommendations relevant to quality assurance and control. Licen sed pharmaceutical products (marketing authorization) should be manufactured only by licensed manufacturers (holders of a manufacturing authorization) whose activities are regularly inspected by competent national authorities.
7. Volume 1 of Quality assurance of pharmaceuticals: a compendium of guidelines and related materials was published by WHO in 1997.
8. Consumer Protection, GA Res. 39/248, UN GAOR, 39th Sess., Supp. No. 51, Annex, Agenda item 1, UN Doc. a/248 (1985) 179.
9. Law No. 2011/ 012 of 06 May 2011 on Consumer Protection,
10. Ibid, section 32.
11. Howard Badler, What are my consumer rights? http://www. biz community.com/ Article/196/160/178811 html. Accessed 1/7/2018.
12. Saraf D.N., "The Law of Consumer Protection in India", 2nd Ed, Bombay: N.M. Tripathi Pvt. Ltd., 1995, p.1.
13. Consumer Protection, GA Res.39/248, UN GAOR, 39th See, Supp. no.51, Annex, Agenda Item 1, UN Doc. A/248 (1985) 180, Agendas Items 7-8.
14. Ibid, 181, Agenda Item 38.
15. WHO; Quality Assurance of pharmaceuticals: A compendium o f guidelines and related materials, Vol 2, Good Manufacturing Practices and inspection, 2007. P. 1.
16. The Alma -Ata Declaration of 1978 emerged as a major milestone of the twentieth century in the field of public health, and it identified primary health care as the key to the attainment of the goal of Health for All.
17. WHO; Quality Assurance of pharmaceuticals: A compendium of guidelines and related materials, op.cit. p. 1.
18. In response to these resolutions, the WHO Expert Committee on Specifications for Pharmaceutical Preparations, which was originally created to prepare The International Pharmacopoeia, has made numerous recommendations relevant to quality assurance and control. Licensed pharmaceutical products (marketing authorization) should be manu factured only by licensed manufacturers (holders of a manufacturing authorization) whose activities are regularly inspected by competent national authorities.
19. Volume 1 of Quality assurance of pharmaceuticals: a compendium of guidelines and related material s was published by WHO in 1997.
20. Sarah-Lynn Tennant and Vuyikazi Mbelle "The Consumer Protection Act and Five Common Law Principles", available on http://www.saflii.org/za/journals/DEREB US/2013/17.htm
21. Consumer protection Act 1987. Chapter 43.
22. Titus S., Ndambi, The Effectiveness of Consumer Protection Law in Tanzania: A case study of Ewura, Bachelor of Law (LLM), 2014.
23. Law No. 96 -6 of 18 January 1996 to amend the constitution of 2nd June 1972.
24. Charles A. Reich, "Individual Rights and Social Welf are: The Emerging Legal Issues" Yale, L.J 1245 1965, 74, p. 1256.
25. Law No. 2011/ 012 of 06 May 2011 on Consumer Protection, Section 2.
26. Ibid, section 32(1).
27. Ibid, Section 3(a-f).
28. Ibid, section 11.
29. Thalidomide is a drug created in Germany by the Grunenthal Gr oup that was prescribed during the late 1950s and early 1960s. It was developed as a sleeping pill, JLTCPL (2020) 45–57 © Law Journals 2020. All Rights Reserved Page 56 but it was also thought to be useful for easing morning sickness in pregnant women. The drug was banned worldwide in the 1960s after it produced thousands o f babies with missing and stunted limbs.
30. Ibid, p. 417.
31. Decree No. 2005/252 Of 30 June 2005 to Set Up, Organize And Lay Down The Functioning Of The National Essential Drugs And Medical Supplies Procurement Centre.
32. Law No. 2011/ 012 of 06 May 2011 on Consumer Protection, section 18(2). The producer or a supplier of a technology, good or service supplied and sold to a consumer shall be liable for damage caused by such technology, good or service, where it is established that the consumer was not adequately inf ormed about the risk posed by the technology, good or service.
33. Penal Code, article 258(1). " Est Puni d'un emprisonnement de trois (03) ans et d'une amende d'un million (1 000 000) a trois millions (3 000 000) de francs, celui qui: Vend un médicament sans y être légalement autorise; vend un médicament contrefait, périmé ou non autorise; détient, pour le vendre, un médicament falsifie, altéré ou nuisible a la sante humaine."
34. Article 1641 – "Le vendeur est tenu de la garantie à raison des defaults caches de l a chose vendue qui la rendent impropre à l’usage auquel on la destine, ou qui diminuent tellement cet usage, que l’acheteur ne l’aurait pas acquise, ou n’en aurait donné qu’un moindre prix, s’il les avait connus".
35. "For the vendor must deliver the goods according to the quantity, quality, specification, and packaging as provided for in the contract. Unless otherwise agreed by the parties, the goods shall only be considered to conform to the contract where: are fit for the purpose goods of that nature are generally used; purpose which was brought to the knowledge of the vendor at the time of the contract; sample or model which was given to the purchaser by the vendor; method of packaging goods of the same nature or, if there is no such usual method, in a manner to ensure their conservation and protection."
36. (1934) AC 402 at 430.
37. What s.14 (2) now means by merchantable quality is that the goods in the form in which they were tended were of no use for anti-purpose for which such goods would normally be used and hence not sealable under that description.
38. A good example in Cameroon is the sale of p harmaceutical products where the consumer must produce a “prescription order”, otherwise known in French as “Ordinance” before he can be served by the pharmacist. The “prescription order” or “ordinance” is an implied description of the drugs required. Unti l this requirement is satisfied, the pharmacist may not be held liable for the supply of wrong quality drugs, which may be detrimental to the consumer’s health. If merchantability will mean suitability for the purpose, then the right pharmaceutical product s will only be supplied where they are adequately described.
39. Egute Mathew Amandong, an Overview of the Implied Condition as To Merchantable Quality; a Paradigm of Consumer Protection under the Cameroonian Sale of Goods Law, Imperial 2, 2016. p.790.
40. Ibid, section 3(1).
41. Ashok.R. Patil, A Study on consumer Protection Through Maintenance Of Product Safety and Standards in India, Asian Law Institute, ASLI working paper No. 023.p1,2.
42. [1932] A.C. 562.
43. Ashok.R. Patil, op.cit, p.2.
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45. SALEM G., Contribution to the study of medical liability for fault in French and American law, Thesis University of Paris VIII Vincennes Saint Denis, March 2015, PP.80-83.
46. Le TOURNEAU P. and CADIET L. Law of Responsibility and Contracts, Dalloz Action, 1996, No. 3066
47. Simo Kouam, F., A., " La R esponsabilité en Droit Médicale et Hospitalier: Contribution a l'amélioration du system Hospitalier Camerounais", RASJ, no 1. 2017. p.7.
48. Hunter, R.J., Amoroso H.J., & Shannon H., op.cit, p. 9
49. Zinta Straydom: A Critical Analysis of Strict Product Liability in South Africa, Masters Dissertation, 2012. p. 39.
50. The sale of drugs and other pharmaceuticals in markets, along the roads or by hawkers shall be strictly forbidden all over the national territory.
51. Joint Decision No. 0050/MINDIC/MSP Of 10 August 1996 To L ay Down The Practicalities of Control of the Illicit Sale Of Drugs And Pharmaceuticals, Article 2(1). Cite this Article Adna Ebude . Defective Products and Consumer Protection: What Relevance of Application under Cameroonian Law . Protection Law . 2020; 3(1): 45–57p.
