25 April 2013

Marketing practices act amended - expansion of the scope of the consumer ombudsman

On 11 April 2013, the Danish Parliament adopted a number of amendments to the Marketing Practices Act ("Act").
The amendments consisted of three principal elements expanding the scope of the Act and the powers of the Consumer Ombudsman as well as specifications in relation to the protection of children and adolescents.

Financial companies must now comply with the Act

According to the amendments, financial companies are now covered by several provisions of the Act. Until now, financial companies have been exempted from the rules of the Act on misleading information and duty of disclosure in connection with invitations to purchase.

The purpose of the amendment is to introduce equal regulation of uniform violations. Consequently, the Consumer Ombudsman is given the opportunity to apply these rules vis-á-vis all businesses and now also financial companies.

This is considered appropriate in the situations where financial companies compete with non-financial companies, which is more and more common, e.g. on the credit market.

The FSA is still primarily responsible for the supervision of the companies' compliance with the financial regulations, and there is thus no change in the powers of the FSA.

In relation to financial companies, the Act provides for the Consumer Ombudsman to decide on both aspects pertaining to public law, e.g. filing police reports, and to negotiate claims for damages on behalf of consumers. This is to ensure a more effective case handling.

The Act has been criticised for involving the risk of double supervision from the Consumer Ombudsman and the FSA and consequently parallel proceedings for the same violation. However, the Minister of Business and Growth rejects the criticism.

Expansion of the powers of the Consumer Ombudsman

The amendment of the Act also expands the powers of the Consumer Ombudsman within certain areas.

For example, the Consumer Ombudsman can now commence individual proceedings on behalf of consumers in connection with collective consumer considerations or general social considerations. This applies in situations where a number of similar cases may be affected by the individual case.

The amendment also involves authority for the Minister of Business and Growth to point out a number of areas where the Consumer Ombudsman can impose fines on businesses. Previously, this authority lied with the prosecution service.

Prohibition against alcohol and drugs in marketing towards children and adolescents

Finally, the amendments result in a tightening of the rules as regards alcohol and drugs in marketing.

Until now, commercials aimed at children and adolescents were not to encourage the use of intoxicants, including alcohol. In the future, it is completely prohibited to use alcohol in commercials aimed at children and adolescents.

Expansion of the scope of the Consumer Ombudsman

The amendments thus expand the areas supervised by the Consumer Ombudsman under the Act. At the same time, the Consumer Ombudsman is given more  enforcement tools in relation to businesses violating the Act.

It will be interesting to see how the Consumer Ombudsman will administer the new authority; and also how the supervision of financial companies will be administered, including the risk of overlaps due to the new rules.

 

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