Consumer law has provided greater protection against the vulnerability to which consumers are exposed in the market, intensifying regulatory oversight according to the variables present in innovative commercial relationships. Accordingly, this article seeks to develop the protection of the duty to inform that is acquired, establishing the liability incurred by suppliers and producers.
From the foregoing, it is necessary to indicate the duty to inform that falls on suppliers and producers, as set forth in Article 23 of the Consumer Statute, which states: “They must provide consumers with clear, truthful, sufficient, timely, verifiable, comprehensible, precise, and suitable information about the products they offer.” Thus, the essential elements of adequate information are expressly established.
Now, due to the constant changes currently occurring in commercial relationships and the ease of conducting distance transactions, consumers face greater vulnerability and risk, since the product or service was not acquired physically, preventing them from knowing the minimum conditions that the product must meet, resulting in a greater responsibility regarding the duty to inform that must be provided.
In relation to distance sales or e-commerce, it should be noted that in addition to the aforementioned elements, special obligations are established for commercial sales in Article 50 of the Consumer Statute, which regulates the duty to inform as an obligation arising from good faith that must be provided by producers or suppliers when providing or selling a product and/or service, based on generating correct information about them, that is, providing consumers with all information on characteristics, properties, qualities, quantities, or any relevant element that cannot be directly evidenced, since the consumer has no direct contact with the product or service being acquired. The purpose of the regulation in precisely governing the obligation of the duty to inform results from the inequality in which the consumer may be immersed regarding knowledge or acquisition of the product or service, whose compliance aims to generate a liability link beyond the sale of the product or service, where the producer or supplier provides all related information about the person offering the product, about the products or services, and about the manner in which the commercial transaction will be conducted, as well as determining the conditions after the purchase.
In line with the above, the duty to inform regarding distance sales goes beyond the mere detail of the product and/or service, which, although it provides a perspective on what the consumer will acquire, generates an obligation of liability regarding:
– Providing secure purchases through the medium where the sale of the product and/or service is conducted.
– Properly informing of the right of withdrawal that applies to products, whereby the consumer is granted the right to request the termination of the contract, resulting in the return of the goods to their original state.
– Establishing changes under warranties, according to the information provided about the offered product, with the stipulation of the time period to do so being relevant; if not established, what is determined by law shall apply.
– Lastly and most importantly, providing adequate advertising regarding the determination of the characteristics of the product or service, in order to prevent inducing the consumer to make a purchase due to any type of error, deception, or confusion.
As can be seen, the duty to inform has a significant impact on commercial relationships arising from the sale and offering of the product and/or service; therefore, the protection of the duty to inform granted to the consumer is based on being able to properly manage all means, both electronic and physical, where the sale occurs.
However, in the event of a breach and/or failure in the legal duty to inform regarding what is offered in goods and services, it will be the consumer's responsibility to demonstrate through evidentiary means the violation of the due right to information.
Prepared by: Paula Andrea Florez, Consulting Attorney.