Consumer and Environmental Law

Ch. 44

 

 

DECEPTIVE ADVERTISING

 

FTC oversight includes:

 

·            Deceptive Advertising: Advertising that misleads con­sumers, either by making unjustified claims regarding a product's composition, qualities, sponsorship, or performance or by omitting a material fact concerning the product's com­position, qualities, sponsorship, or performance.

 

·        False Statements of “Fact”: Advertising that appears to be based on facts which are, in fact, scientifically untrue, is deceptive.

 

·        Bait-and-Switch Advertising: Advertising one product (the "bait") at a very attractive price, then informing the customer that the advertised product is either unavailable or of poor quality, convincing the customer to purchase a different, more expensive product.

 

·        NOTE: Vague generalities and/or obvious exaggerations collectively called puffery -- are not deceptive.

 

         

·        FTC actions include:

 

                             complaint

                            

                             hearing

                            

                             cease and desist order

                            

                             requiring, in some cases, counter advertising

 

                   Telemarketing:  Phone/Fax

 

                   Labeling and packaging

 

                             Product

                             Content

                             Qty, etc.

                             Nutritional content

 

 

 

DECEPTIVE SALES PRACTICES

 

 

·        Regulation Z: Federal Reserve regulation which governs credit terms of sales contracts.

 

·        "Cooling Off" Laws: Laws that permit consumers a period of time after making a purchase from a door-to-door salesperson in which to cancel the sale and obtain a refund. In addition to various state "cooling-off' laws, the FTC also regulates door-to-door sales.  For example, magazine sales, vacuum cleaner sales, etc, i.e., anything sold door to door or even other high pressure sales.

 

·        State and Federal laws and regulations also govern the following types of consumer transactions:

 

Telephone and Mail-Order Sales 

                   Used Vehicle Sales

                   Funeral Planning and Handling

                   Real Estate Sales and Lending

                   Time shares

 

 

CONSUMER CREDIT PROTECTION

 

·         Truth in Lending Act ("TILA"): Federal law requiring that all terms of a credit instrument be clearly and conspicuously disclosed, and permitting the consumer to rescind, or cancel, any credit contract if the creditor fails to comply with the TILA's requirements.    For example, you can’t just say 1.5% per month, you have to also say 18% per annum.

 

·        Equal Credit Opportunity Act: Prohibits the denial of credit solely on the basis of race, religion, national origin, color, gender, age, or marital status.

 

·        Fair Credit Reporting Act ("FCRA"): Permits consumer credit reporting agencies to issue credit reports only under certain circumstances, requires creditors to inform the consumer if credit has been denied because of information on the consumer's credit report, and provides the consumer with mechanisms by which to request a copy of his or her credit report and to challenge information contained therein.

 

·        Fair Debt Collection Practices Act: Limits the means which collection agencies may use to collect from consumers.

                                                                                                                   

·       Garnishment: State laws permit certain creditors to garnish a portion of a debtor's wages (e.g., for unpaid child support).

 

·       Notice there isn’t anything really yet for identity theft.  This is an area where something really needs to be done. Those of you who have had this hassle or know someone who has, it just keeps going on and on and on.

 

 

 

CONSUMER HEALTH AND SAFETY

 

·        Food and Drug Safety: The Food and Drug Administration ("FDA") protects consumers against adulterated and misbranded food and drugs, regulates food quality, food additives, and food classifications, approves all prescription and over-the-counter drugs before they may be sold to the public, and has the authority to "pull" food and drugs from public distribution.

 

·        Consumer Product Safety: The Consumer Product Safety Commission ("CPSC") conducts research on product safety, maintains a clearinghouse of information on the risks associated with various products, sets standards for product safety, and may ban the manufacture and sale of products it deems to be unduly hazardous to consumers.

 

 

Environmental Law

 

COMMON LAW ACTIONS

 

 

·        Nuisance: A person may be liable if they use their property in a manner that unreasonably interferes with others' rights to use or enjoy their own property.

 

·        If an individual can identify a harm to his property rights distinct from that suffered by others, then he may get relief for the private nuisance.  For example, someone dumped some toxic waste on my property in the country and no one else was probably impacted, I would have the action. (common law)

 

·        On the other hand, if the harm is to the public at large, then generally a public authority will seek relief for the public nuisance (attorney general, DA, etc).

 

·        Toxic Tort:  A theory of negligence or strict liability (depending on the circumstances) against those who pollute the environment with toxic substances.  For example, chemical companies, gas stations, etc.

 

 

 

 

ENVIRONMENTAL REGULATION

 

·                    Environmental Protection Agency ("EPA"): The primary federal regulator of air, soil, and water quality.

 

·                    Environmental Impact Statement: A statement analyzing the environmental impact of a proposed action, any alterna­tives which might have less significant environmental conse­quences, and the long-term adverse effects of the action, if any.

 

 

AIR AND NOISE POLLUTION

 

·       Air Quality Control:  The clean air act, as amended, empowers the federal government to control pollution emissions from both:

 (1)    mobile sources, such as cars and motorcycles, and

(2)     stationary sources, such as factories and power plants.

 

·        Hazardous Air Pollutants: Those pollutants likely to cause an increase in mortality or in serious, irreversible or incapacitating illnesses.

 

·        Noise Pollution Control: The Noise Control Act empowers the federal government to establish noise-emission standards and prohibits the distribution of devices manufactured in violation of these standards.

 

 

WATER POLLUTION

 

·        The Federal Water Pollution Control Act (a.k.a. the Clean Water Act) empowers the federal government to limit the discharge of pollutants into waters used for navigation, recreation, and/or swimming.

 

·        The Safe Drinking Water Act empowers the federal government to set maximum levels for pollutants in public water systems.

 

·        The Clean Water Act, inter alia, prohibits filling or dredging of wetlands -- areas that are inundated or saturated by surface or ground water such that they support certain marsh vegetation and wildlife -- unless approved by the Army Corps of Engineers.

 

·        The Ocean Dumping Act regulates the transportation and dumping of pollutants into ocean waters.

 

·        The Oil Pollution Act creates liability for damages to natural resources, private property, and local economies caused by the discharge of oil into navigable waters or onto an adjoining shore.

 

 

TOXIC & HAZARDOUS SUBSTANCES

 

·                    Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"): Requires that all pesticides and herbicides be (1) registered prior to sale, (2) certified and used for approved applications only, and (3) used only in limited quantities on food crops. FIFRA also imposes strict labeling requirements.

 

·                    Toxic Substances Control Act: Requires manufacturers, processors, and others planning to use chemicals to first determine their effects on human health and the environment and empowers the EPA to (i) require special labeling, (ii) limit use and/or production, or (iii) prohibit use altogether.

 

·                    Resource Conservation and Recovery Act ("RCRA"): Authorizes the EPA to determine which forms of solid waste may be hazardous to human health and/or the environment and to monitor and control hazardous waste disposal.

 

·        CERCLA/ Superfund: Regulates the clean-up of hazardous waste disposal sites and provides that the EPA may recover the cost of cleaning up such sites from (1) waste generators,; (2) waste transporters, and/or (3) owners or operators of the site -- collectively called potentially responsible parties.  Includes parent/sub companies.

 

·        Radiation:  Regulated by the Nuclear Regulatory commission.  For example, nuclear power plants.  There is no similar such oversight in the state or local government due to the complexity of the subject. NO state involvement.