Recently, the Superintendency of Industry and Commerce, through External Circular No. 007 of September 5, 2022, amended certain provisions of the Single Circular issued by the same entity, with the purpose of protecting and improving the consumer experience in commercial establishments dedicated to the provision of food and/or beverage consumption services, and in any other establishment where the payment of a tip is suggested.
Specifically, it sought to clarify the manner in which the owners and managers of the aforementioned establishments may inform consumers of the prices of the goods and services they offer to the public, as well as the obligation to communicate the voluntary nature of tips, as a result of which, consequently, the consumer will have the right not to pay it or to modify its amount when it is suggested to them.
To begin with, the Superintendency cites the determinations made in the Consumer Statute, regarding the consumer's right to access adequate, clear, complete, truthful, transparent, timely, sufficient, verifiable, understandable, precise, and suitable information that allows them to make well-founded choices. Likewise, with respect to the same regulation, the Superintendency recalls that it is an obligation to visually inform the public of the sale price of products, adding that the prerogative to define the specific manner in which communication should be carried out through visual means corresponds to said administrative authority.
For the communication of prices by the related establishments, two optional alternatives are established. On the one hand, the managers or owners of the establishments may choose to communicate the prices of their products and services through a physical price list that must be posted in a conspicuous place within the establishment. Alternatively, they may choose to use physical menus in which all prices are indicated, but, in addition, there must be a copy of the physical menu visible to consumers so that they can consult the prices before entering the establishment.
Additionally, in the establishments, an additional technological means may be offered for communicating prices to consumers who enter the establishments.
However, whatever the manner in which prices are communicated to the consumer, clarity and transparency in the information must be a constant, without there being any risk of inducing error to the user. Thus, in the establishments, the use of abstract or indeterminate expressions is prohibited, the use of a language other than Spanish is prohibited, and the use of denominations that do not correspond to the Colombian peso is prohibited.
Regarding tips, the Superintendency clarifies their nature as a form of monetary recognition, paid voluntarily by the consumer to the personnel of the commercial establishments that provide the services already specified, for the good service or product received and independent of the recorded sale value. Thus, the competent authority highlights its voluntary nature.
As long as its voluntary nature is made clear, establishments may suggest the amount of the tip, leaving the option open for the user regarding its payment, or, otherwise, the user may decide to pay it but modify the suggested amount. In no case, when the establishment makes the respective suggestion, may the amount of the tip exceed 10% of the value of the service provided and invoiced.
The pertinent clarification is made that if the consumer was not given the corresponding clarification regarding the tip and it was included in the invoice, the customer may decide not to pay any amount for the concept of tip or, otherwise, modify the included amount.
The provisions made regarding tips must be communicated to users through notices posted at the entrances of the establishments, in which the voluntary nature of tips and the correlative right of the consumer not to pay them or modify the suggested amount must be clearly specified, in addition to specifying the destination that the tips will have.
For those establishments that go against the cited provisions, the circular directly refers to the sanctions contained in the Consumer Statute. Among the most important are fines of up to two thousand times the current legal monthly minimum wage, temporary and/or definitive closure of the commercial establishment, and temporary or definitive prohibition to produce, distribute, or offer certain products to the public.
Furthermore, if it is proven that the legal representatives of the establishments issued orders or authorized conduct contrary to the cited regulations, they may be subject to fines of up to three hundred times the current legal monthly minimum wage and the prohibition to engage in commerce for up to five years. Regarding the effectiveness of the Circular, the provisions related to price information and the voluntary nature of tips will take effect from the date of publication of the circular, September 5 of this year. As for the obligation to inform the voluntary nature of tips through notices, said provision will take effect on November 5 of this year.
Andrés Ogonaga. – AZC CONSULTING ATTORNEY