At the ABA Spring Meeting last week, representatives from the U.S., U.K. and Canada came together to present “Cross-National Perspectives on Consumer Protection.” The program highlighted differences in enforcement across the various jurisdictions, as well as variations in standards of conduct and cooperation across various governmental agencies. One of the interesting trends is that of countries other than the U.S. increasingly using criminal law as a tool in consumer protection enforcement. Whether the FTC will move toward more frequently handing out striped shirts is something to keep an eye on.
Andrea Rosen from the Fair Practices Branch in Canada highlighted some of the sweeping new changes to the Canadian Competition Act. Ms. Rosen emphasized that Canada recognizes criminal enforcement for consumer protection claims, including jail time, restitution and injunctive relief. The new amendments to the Act allow for 14 years maximum prison sentence (up from the previous 5 year maximum sentences), and a $10 million fine for first orders against companies ($750,000 for first orders against individuals).
With regard to the U.K., a representative from the Office of Fair Trading noted that there is specific legislation aimed at consumer protection and that there are criminal fines available for violations in some heavily regulated areas (such as door-to-door selling). In addition, new legislation passed in 2008 criminalized deceptive advertising in the U.K. and allowed for a 2 year maximum prison sentence for offenders if the intent requirement is proven (recklessness suffices).
In the U.S., the speaker noted that the FTC concentrates on restraining potential bad behavior, rather than punishing such acts after the fact. While the U.S. does allow for criminal prosecution in the consumer protection context if such acts as fraud are at issue, the majority of enforcement takes place in the civil context. However, the FTC Consumer Protection Division does have a criminal liaison unit that has become more active since its inception in 2003.
