Consumer Protection and the Criminal Law: Law, Theory, and Policy in the UK

By Peter Cartwright | Go to book overview

2
Techniques of regulation

Introduction

The previous chapter examined why we protect the consumer. A second question to consider is how to provide that protection. To some extent, this choice will be influenced by the specific objective being addressed. Lack of competition might be tackled by opening up markets and strengthening competition law, and inadequate information by, for example, the imposition of mandatory disclosure requirements. However, identifying an area where consumers are not adequately protected by the market does not mean that the law should necessarily become involved. In some cases it will be extremely difficult, or extremely expensive, to provide a solution. Even where market failure exists, it is generally agreed that government should only intervene where it is cost effective to do so.1

One way of characterising the techniques available is by the extent to which they intervene in the market. At one extreme is prior approval, which requires a product or trader to be authorised before entering the market. In the case of consumer products, this approach is likely to be reserved for sectors that are particularly hazardous, such as pharmaceuticals. In the case of traders, it is likely to be reserved for professionals whose activities pose a considerable degree of harm when undertaken poorly.2 At the other extreme, we might allow an industry to regulate itself, for example by a code of practice. Self-regulation is most likely to be used where industries are trusted to put their own houses in order, and where statutory intervention might be unduly burdensome. Between these two extremes are standards and information remedies. The term standards is used in a number of different contexts, as will become

____________________
1
G. K. Hadfield, R. Howse, and M. J. Trebilcock, 'Information-Based Principles for Rethinking Consumer Protection Policy' (1998) 21 JCP 131 at 156. It is submitted that a distributive element should be built in to any assessment of cost-effectiveness.
2
For the difficulties in identifying precise justifications for prior approval of traders see A. I. Ogus, Regulation: Legal Form and Economic Theory (Oxford, Clarendon Press, 1994), ch. 10, especially pp. 216–20.

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Consumer Protection and the Criminal Law: Law, Theory, and Policy in the UK
Table of contents

Table of contents

  • Title Page *
  • Contents vii
  • Preface ix
  • Acknowledgements xii
  • Abbreviation xiii
  • 1 - Consumer Protection Rationales 1
  • 2 - Techniques of Regulation 40
  • 3 - The Role of Criminal Sanctions in Consumer Protection 63
  • 4 - The Use of the Criminal Law 87
  • 5 - Consumers and Safety: the Protection of Physical Integrity 126
  • 6 - The Protection of Economic Interests 156
  • 7 - The Enforcement of Regulatory Consumer Law 212
  • 8 - Conclusions 244
  • Index 250
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