Most of the EU member states simply take over the wording of the Consumer Rights Directive without further specifying the legibility of print in consumer contracts or advertising and without specifying how clarity and comprehensibility136 is to be achieved nor the form137into which this information is to be provided. European and national legislation often limits itself to vague concepts like ‘simple and clear information’,‘visible, readable and comprehensible’,‘clear and precise’information etc.138
Piazzon criticizes the lack of clarity of European and national legislation.139He questions whether there should be any difference between clarity, intelligibility and comprehensibility other than that they all incorporate two obligations. The first relates to the form, the presentation of the information which must be easy to read in terms of print size and contrast between font size and background.140The second refers to the content of the information and its comprehensibility.
In absence of further instructions from the European legislator, national courts themselves, as pointed out above, undertake efforts to increase transparency. At some occasions the legislator comes to their help.
136Comprehensibility can be seen as a synonym to the wording‘easy to understand’which is used for information in food labelling, but it can also be regarded as a less strict demand.
137Tangible medium or digitally. In Greece for instance the requirement of good faith imposes that consumers receive pre-contractual information which is easily accessible and which they can understand, whether this information is on the businesses’website or provided in a hard copy.
See the contribution of Karampatzos and Kotios to this book. It may indeed be assumed that pre-contractual consumer information must be provided in writing.
138The Italian Consumer Code refers to parameters like exhaustiveness, clarity, comprehensibility, good faith and accessibility for the assessment of information. Romanian legislation seems to introduce a threefold standard of complete information (before, during and after the conclusion of the contract); transparency which refers to visibility of the information, readability and easiness to understand the information, and comprehensibility which encompasses understandability in the grammatical sense of the concept but also the obligation to inform the consumer about the real implications of the contract; and correct information. See more extensively on this standard, the contribution of Bercea and Caramidariu to this book.
139He also submits that despite the absence of any guidance from the directive the French legislator has imposed the burden of proof on the trader to demonstrate whether he has fulfilled his information obligation. The assignment of the burden of proof has also been the subject of debate in Belgian doctrine. There is a tendency in scholarly views and case law that the burden of proof, contrary to the Civil Code rules, should rest on the trader. See in this regard Cambie and Straetmans (2016), pp. 57–58. Also Romania imposed the burden of proof on the trader, see the contribution of Bercea and Caramidariu to this book.
140In that regard French law prescribes that if certain information provided on paper is subject to specific readability requirements, equivalent requirements apply to the digital counterpart of this information.
Food for instance has been the subject of intensive regulation across the world.
This regulatory context includes very detailed labelling requirements.141This is not the place to extensively analyse these requirements,142nor specific legislation143that has been adopted concerning types of products that are considered harmful to the consumer’s health like for instance tobacco products. However, an innovative information technique that is specific to food labelling is worth mentioning, namely the Multiple Traffic Light System introduced on a voluntary basis in the United Kingdom. This system shows the levels of nutrients of the food as either high, medium or low. It helps consumers in assessing the nutritional qualities of foods in a
141See e.g. Regulation 1169/2011 of 25 October 2011on the provision of food information to consumers,O.J.22 November 2011, L 304/18. This regulation provides for instance for mandatory country of origin labelling (COOL) but also includes a provision that allows Member States to adopt national COOL measures. It has been argued that national COOL measures lead to a decrease in purchase of products coming from outside the concerned Member State. An American pilot study seems to confirm that American consumers are more likely to purchase meat when it is identified as a U.S. product since The COOL requirement impacts inferred attributes, such that meat products from the U.S are perceived to be safer, tastier, and fresher than meat products from Mexico.
However, the study also reveals that the direct and indirect effects of the country-of-origin disclosure are attenuated by the presentation of objective information about the meat processing systems of competing countries. See Berry et al. (2015), pp. 533–542. Schmeiser also points out that the regulator’s decision to mandate a disclosure signals to consumers that an attribute is important and the intensity of the disclosure determines the strength of the signal, see Schmeiser (2014), pp. 192–200. On the basis of his model, Schmeiser concludes that “if regulators over-warn consumers about the side effect, consumers receive conflicting messages about the severity. If consumers react in accordance with the level of risk implied by the regulatory effort rather than the statistical data, it may seem as if they are over-estimating the risk from a small probability event.
(. . .) Consumers might also draw inferences from information voluntarily disclosed by private
firms. If consumer preferences are not malleable, thenfirms only devote advertising resources to attributes that consumers care about. But if afirm knows that its advertisements affect consumer preferences, then they will use this to their advantage”(p. 198).
142Japanese law for instance introduced detailed rules relating to the print size of the mentions on the label of foodstuffs. The size of all mentions on the package of a product must be larger than 8 points, save in cases where the surface of the packaging is less than 150 cm2, in which case the print size may be reduced to 5.5 points. See the contribution of Nozawa to this book.
143For instance Poland has a certain expertise with traders in food supplements that used manip- ulative techniques to assign medicinal properties to products with misleading statements like‘cures the cough’or‘supports immunity’. Also the umbrella branding that some traders used for medicinal products and food supplements caused considerable consumer confusion since consumers auto- matically assigned medicinal properties to all products sold under the same umbrella branding. See the contribution of Namyslowka and Jablonowska to this book. Manipulative techniques of this kind used by businesses have not been the subject of specific legislation in other reporting countries.
Schinkels points out that as long as the reasonably well-informed and reasonably observant and circumspect consumer is used as a benchmark,“it is questionable whether the use of a colour for a package as such may suffice to establish a misleadingproduct-information with regard to purely emotional connotations while there is formal correct information about ingredients and nutrition. By contrast, packaging colours may be misleading if, according to established usages, they induce the expectation that the package contains a different product”, see the contribution of Schinkels to this book.
more comprehensible manner than the guideline daily amount (GDA) labelling.
Although the introduction of this system was also debated in Ireland it was found to be‘over-simplistic’as compared to the GDA labelling.144According to a survey by the Society for Consumption Research (Gesellschaft für Konsumforschung, GfK) executed in June 2009, 69% of all interviewed German consumers were in favour of such a system and 77% rejected a European prohibition of the mandatory imple- mentation of such a system by national legislators.145In Germany, the academic board of advisors of the former Federal Ministry of Nutrition, Agriculture and Consumer Protection advocated more in general that there should be more differen- tiation of groups of consumers,146 whereby the distinction between trusting,147 vulnerable148and responsible consumers149could be helpful.150
Even beyond the context of food regulation initiatives are taken to help national courts in their decision taking. In the UK a recent study of the Competition and Markets Authority provides for guidance on information presented to consumers in digital comparison tools.151Digital comparison tools (DCTs) are defined as“digital intermediary services used by consumers to compare and potentially to switch or purchase products or services from a range of businesses”. The report concludes that realising the benefits for consumers, such as time and effort saving and lower prices and better choices as a result of suppliers competing harder, depends on a number of things being in place: (a) consumers need sufficient trust and confidence to use DCTs in the first place, and enough understanding to choose and use them effectively;
(b) DCTs need to be able to offer a relevant and accurate service and a smooth
144See the contribution of Kelly to this book. According to Purnhagen, Van Herpen and Van Kleef, who examined the EU health claims regime, visuals may mislead consumers to a larger extent than textual claims in that they overpromise health benefits of consuming the product. Therefore, they claim that in order to effectively regulate health claims in the EU, regulation has to devote much more attention to the regulation of pictorial claims. See Purnhagen et al. (2016), pp. 197–216.
145See the contribution of Schinkels to this book who refers to Spiegel online, 24. July 2009, Verbraucher wollen Lebensmittel-Ampel; see also https://www.foodwatch.org/de/informieren/
ampelkennzeichnung/mehr-zum-thema/studie-vergleich-ampel-gda/.
146Der vertrauende, der verletzliche oder der verantwortungsvolle Verbraucher? Plọdoyer fỹr eine differenzierte Strategie in der Verbraucherpolitik Stellungnahme des Wissenschaftlichen Beirats Verbraucher- und Ernọhrungspolitik beim BMELV, as of December 2010, accessible via:https://
www.vzbv.de/sites/default/files/downloads/Strategie_verbraucherpolitik_Wiss_BeiratBMELV_
2010.pdf.
147Trusting consumers do not want to and cannot take the time necessary to inform themselves and to achieve the expertise to take well-grounded decisions especially in thefields of healthcare and finance.
148Vulnerable consumers are persons excluded from social and economic interactions because of excessive indebtedness, sickness or lacking means of access to the internet.
149Responsible consumers are persons who actively inform themselves and others in order to optimize sustainability of consumption regarding ecological and social aspects of production and disposal of consumables.
150See the contribution of Schinkels to this book.
151Competition and Markets Authority United Kingdom (2017).
consumer journey, including information both about consumers and their require- ments, and about the products being compared; (c) competition between DCTs needs to be effective, so that people can benefit from the competitive pressure DCTs bring to bear on the suppliers whose services they compare, and suppliers pay competitive prices for the services DCTs offer; and (d) regulation should support all these factors in a proportionate way, if the market does not deliver them on its own. Although consumer’s surveys give a mostly positive picture of DCTs, concerns have been raised about the transparency, accessibility for vulnerable consumers of DCTs and their use of consumers’personal information.152The study issued strong concerns about some types of contract between suppliers and DCTs, which prevent suppliers from offering better prices on one DCT than on another (so-called wide price parity/
Most Favoured Nation clauses) and can reduce competition between DCTs.153It also provides recommendations for improvement of DCTs in order to support consumer trust and informed choice between DCTs and between suppliers. To that aim DCTs should treat people fairly, by being Clear, Accurate, Responsible and Easy to use (CARE). This CARE-principle is further specified in specific recom- mendations with regard to each of the aforementioned high-level principles.154