Code of the District of Columbia: Chapter 39. Consumer Protection Procedures

Code of the District of Columbia

Chapter 39. Consumer Protection Procedures.

§ 28–3901. Definitions and purposes.    1

§ 28–3902. Department of Consumer and Regulatory Affairs as consumer protection agency.    4

§ 28–3903. Powers of the consumer protection agency.    5

§ 28–3904. Unfair or deceptive trade practices.    10

§ 28–3905. Complaint procedures.    14

§ 28–3906. Consumer education and information.    22

§ 28–3907. Advisory Committee on Consumer Protection.    23

§ 28–3908. Severability.    24

§ [28-3909.01]. Attorney General Authority.    24

§ 28–3910. Investigatory powers of Attorney General [for the District of Columbia].    25

§ 28–3911. District of Columbia Consumer Protection Fund. [Repealed]    26

§ 28–3912. Submissions to the Council.    27

§ 28–3913. Rules.    27

§ 28–3901. Definitions and purposes.

(a) As used in this chapter, the term —

(1) “person” means an individual, firm, corporation, partnership, cooperative, association, or any other organization, legal entity, or group of individuals however organized;

(2) “consumer” means:

(A) When used as a noun, a person who, other than for purposes of resale, does or would purchase, lease (as lessee), or receive consumer goods or services, including as a co-obligor or surety, or does or would otherwise provide the economic demand for a trade practice;

(B) When used as an adjective, describes anything, without exception, that:

(i) A person does or would purchase, lease (as lessee), or receive and normally use for personal, household, or family purposes; or

(ii) A person described in § 28-3905(k)(1)(B) or (C) purchases or receives in order to test or evaluate qualities pertaining to use for personal, household, or family purposes.

(3) “merchant” means a person, whether organized or operating for profit or for a nonprofit purpose, who in the ordinary course of business does or would sell, lease (to), or transfer, either directly or indirectly, consumer goods or services, or a person who in the ordinary course of business does or would supply the goods or services which are or would be the subject matter of a trade practice;

(4) “complainant” means one or more consumers who took part in a trade practice, or one or more persons acting on behalf of (not the legal representative or other counsel of) such consumers, or the successors or assigns of such consumers or persons, once such consumers or persons complain to the Department about the trade practice;

(5) “respondent” means one or more merchants alleged by a complainant to have taken part in or carried out a trade practice, or the successors or assigns of such merchants, and includes other persons who may be deemed legally responsible for the trade practice;

(6) “trade practice” means any act which does or would create, alter, repair, furnish, make available, provide information about, or, directly or indirectly, solicit or offer for or effectuate, a sale, lease or transfer, of consumer goods or services;

(7) “goods and services” means any and all parts of the economic output of society, at any stage or related or necessary point in the economic process, and includes consumer credit, franchises, business opportunities, real estate transactions, and consumer services of all types;

(8) “Department” means the Department of Consumer and Regulatory Affairs;

(9) “Director” means the Director of the Department of Consumer and Regulatory Affairs;

(10) “Chief of the Office of Compliance” means the senior administrative officer of the Department’s Office of Compliance who is delegated the responsibility of carrying out certain duties specified under section 28-3905;

(11) “Office of Adjudication” means the Department’s Office of Adjudication which is responsible for carrying out certain duties specified under section 28-3905;

(12) “Office of Consumer Protection” means the Department’s Office of Consumer Protection which is responsible for carrying out the statutory requirements set forth in § 28-3906; and

(13) “Committee” means the Advisory Committee on Consumer Protection which is responsible for carrying out the statutory requirements set forth in section 28-3907.

(14) “nonprofit organization” means a person who:

(A) Is not an individual; and

(B) Is neither organized nor operating, in whole or in significant part, for profit.

(15) “public interest organization” means a nonprofit organization that is organized and operating, in whole or in part, for the purpose of promoting interests or rights of consumers.

(b) The purposes of this chapter are to:

(1) assure that a just mechanism exists to remedy all improper trade practices and deter the continuing use of such practices;

(2) promote, through effective enforcement, fair business practices throughout the community; and

(3) educate consumers to demand high standards and seek proper redress of grievances.

(c) This chapter shall be construed and applied liberally to promote its purpose. This chapter establishes an enforceable right to truthful information from merchants about consumer goods and services that are or would be purchased, leased, or received in the District of Columbia.

(d) In construing the term “unfair or deceptive trade practice” due consideration and weight shall be given to the interpretation by the Federal Trade Commission and the federal courts of the term “unfair or deceptive act or practice,” as employed in section 5(a) of An Act To create a Federal Trade Commission, to define its powers and duties, and for other purposes, approved September 26, 1914 (38 Stat. 719; 15 U.S.C. § 45(a)).

(July 22, 1976, D.C. Law 1-76, § 2, 23 DCR 1185; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Mar. 8, 1991, D.C. Law 8-234, § 2(b), 38 DCR 296; Feb. 5, 1994, D.C. Law 10-68, § 27(b), 40 DCR 6311; Apr. 9, 1997, D.C. Law 11-255, § 27(u), 44 DCR 1271; Oct. 19, 2000, D.C. Law 13-172, § 1402(b), 47 DCR 6308; Oct. 20, 2005, D.C. Law 16-33, § 2032(b), 52 DCR 7503; June 12, 2007, D.C. Law 17-4, § 2(a), 54 DCR 4085; Apr. 23, 2013, D.C. Law 19-282, § 2(b)(1), 60 DCR 2132; July 17, 2018, D.C. Law 22-140, § 2(b), 65 DCR 5970.)

Prior Codifications

1981 Ed., § 28-3901.

1973 Ed., T. 28, Appx., § 2.

Section References

This section is referenced in § 1-350.10, § 28-3301, and § 28-3905.

Effect of Amendments

D.C. Law 13-172 in subsec. (b)(1) inserted “and deter the continuing use of such practices” following “practices” in subsec. (b)(1) and added subsec. (c) providing for liberal construction of the chapter.

D.C. Law 16-33 rewrote subsec. (a)(12), which had read:

“(12) ‘Office of Consumer Education and Information’ means the Department’s Office of Consumer Education and Information which is responsible for carrying out the statutory requirements set forth in section 28-3906; and”

D.C. Law 17-4 rewrote subsec. (a)(3), which had read as follows: “(3) ‘merchant’ means a person who does or would sell, lease (to), or transfer, either directly or indirectly, consumer goods or services, or a person who does or would supply the goods or services which are or would be the subject matter of a trade practice;”.

The 2013 amendment by D.C. Law 19-282 rewrote (a)(2); added (a)(14) and (a)(15); and added the last sentence in (c).

Cross References

Automobile Consumer Protection Act, see § 50-501 et seq.

Employer-paid personnel services, operation requirements, see § 32-406.

Employment agencies and counseling services, operation requirements, see §§ 32-404 and 32-405.

Job listing services, operation requirements, see § 32-407.

Emergency Legislation

For temporary (90-day) amendment of section, see § 1402(b) of the Fiscal Year 2001 Budget Support Emergency Act of 2000 (D.C. Act 13-376, July 24, 2000, 47 DCR 6574).

For temporary (90 day) amendment of section, see § 1402(b) of the Fiscal Year 2001 Budget Support Congressional Review Emergency Act of 2000 (D.C. Act 13-438, October 20, 2000, 47 DCR 8740).

For temporary (90 day) amendment of section, see § 2032(b) of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).

Short Title

Short title of subtitle D of title II of Law 16-33: Section 2031 of D.C. Law 16-33 provided that subtitle D of title II of the act may be cited as the Department of Consumer and Regulatory Affairs Consumer Protection Revitalization Act of 2005.

Delegation of Authority

Delegation of authority pursuant to Law 1-76, see Mayor’s Order 86-132, August 12, 1986.

§ 28–3902. Department of Consumer and Regulatory Affairs as consumer protection agency.

(a) The Department of Consumer and Regulatory Affairs shall be the principal consumer protection agency of the District of Columbia government and shall carry out the purposes of this chapter.

(b) Repealed.

(c) The Director of the Department of Consumer and Regulatory Affairs shall exercise the powers set forth in section 28-3905 through the Office of Compliance, and shall appoint a Chief of the Office of Compliance from among active members of the unified District of Columbia Bar. The Chief of the Office of Compliance may carry out investigative, conciliatory, and other duties assigned by the Director.

(d) Repealed.

(e) The Mayor shall appoint one or more attorneys qualified to serve as administrative law judges or attorney examiners to conduct adjudicatory proceedings. Any administrative law judge or attorney examiner appointed pursuant to this subsection may hear cases pursuant to § 2-1801.03.

(f) Repealed.

(g) Repealed.

(h) Repealed.

(i) Notwithstanding any other provision of District law, enforcement of this chapter by the Department of Consumer and Regulatory Affairs is suspended until October 1, 2002. This subsection shall not prevent the Department of Consumer and Regulatory Affairs from cooperating with, and making appropriate referrals to, another law enforcement agency.

(July 22, 1976, D.C. Law 1-76, § 3, 23 DCR 1185; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Mar. 5, 1981, D.C. Law 3-159, § 2(a), 27 DCR 5147; Oct. 5, 1985, D.C. Law 6-42, § 422, 32 DCR 4450; Mar. 8, 1991, D.C. Law 8-234, § 2(c), 38 DCR 296; Mar. 8, 1991, D.C. Law 8-237, § 4, 38 DCR 314; Feb. 5, 1994, D.C. Law 10-68, § 27(a), (c), 40 DCR 6311; Sept. 26, 1995, D.C. Law 11-52, § 812, 42 DCR 3684; Apr. 9, 1997, D.C. Law 11-255, § 27(v), 44 DCR 1271; Apr. 29, 1998, D.C. Law 12-86, § 1301(a), 45 DCR 1172; Mar. 26, 1999, D.C. Law 12-175, § 1403, 45 DCR 7193; Apr. 20, 1999, D.C. Law 12-264, § 27(b), 46 DCR 2118; Oct. 19, 2000, D.C. Law 13-172, § 1402(c), 47 DCR 6308.)

Prior Codifications

1981 Ed., § 28-3902.

1973 Ed., T. 28, Appx., § 3.

Effect of Amendments

D.C. Law 13-172 in subsec. (i) substituted 2002 for 2000 and added a new sentence at the end thereof providing cooperating with and making referrals to another law enforcement agency.

Cross References

Prescription drug price posting, enforcement, cease and desist orders, see § 48-804.03.

Prescription drug price posting, informational posters provided to pharmacies, see § 48-801.02.

Emergency Legislation

For temporary amendment of section, see § 811 of the Omnibus Budget Support Congressional Review Emergency Act of 1995 (D.C. Act 11-124, July 27, 1995, 42 DCR 4160).

For temporary amendment of section, see § 503 of the Health Insurance Portability and Accountability Federal Law Conformity Emergency Amendment Act of 1998 (D.C. Act 12-339, May 4, 1998, 45 DCR 2947) and § 503 of the Health Insurance Portability and Accountability Federal Law Conformity, Motor Vehicle Insurance, Regulatory Reform, and Consumer Law Congressional Review Emergency Amendment Act of 1998 (D.C. Act 12-429, August 6, 1998, 45 DCR 5890).

For temporary amendment of section, see § 1003 of the Fiscal Year 1999 Budget Support Emergency Act of 1998 (D.C. Act 12-401, July 13, 1998, 45 DCR 4794) and § 1003 of the Fiscal Year 1999 Budget Support Congressional Review Emergency Act of 1998 (D.C. Act 12-564, January 12, 1999, 46 DCR 669).

For temporary (90-day) amendment of section, see § 1003 of the Fiscal Year 1999 Budget Support Congressional Review Emergency Act of 1999 (D.C. Act 13-41, March 31, 1999, 46 DCR 3446).

For temporary (90-day) amendment of section, see § 1402(c) of the Fiscal Year 2001 Budget Support Emergency Act of 2000 (D.C. Act 13-376, July 24, 2000, 47 DCR 6574).

For temporary (90 day) amendment of section, see § 1402(c) of the Fiscal Year 2001 Budget Support Congressional Review Emergency Act of 2000 (D.C. Act 13-438, October 20, 2000, 47 DCR 8740).

Temporary Legislation

For temporary (225 day) amendment of section, see § 503 of Health Insurance Portability and Accountability Federal Law Conformity, Motor Vehicle Insurance, Regulatory Reform, and Consumer Law Temporary Amendment Act of 1998 (D.C. Law 12-154, September 18, 1998, law notification 45 DCR 6951).

§ 28–3903. Powers of the consumer protection agency.

*NOTE: This section includes amendments by temporary legislation that will expire on February 4, 2022. To view the text of this section after the expiration of all emergency and temporary legislation, click this link: Permanent Version.*

(a) The Department, in its discretion, may:

(1) receive and investigate any consumer complaint and initiate its own investigation of deceptive, unfair, or unlawful trade practices against consumers where the:

(i) amount in controversy totals $250 or more; or

(ii) case, or cases, indicates a pattern or practice of abuse on the part of a business or industry;

(2) issue summonses and subpoenas to compel the production of documents, papers, books, records, and other evidence, hold hearings, compel the attendance of witnesses, administer oaths, and take the testimony of any person under oath, concerning any trade practice;

(3) issue cease and desist orders with respect to trade practices determined to be in violation of District law by the Department;

(4) report to appropriate governmental agencies any information concerning violation of any law;

(5) present the interest of consumers before administrative and regulatory agencies and legislative bodies;

(6) assist, advise, and cooperate with private, local and federal agencies and officials to protect and promote the interest of the District of Columbia consumer public;

(7) assist, develop, and conduct programs of consumer education and information through public hearings, meetings, publications, or other materials prepared for distribution to the consumer public of the District of Columbia;

(8) undertake activities to encourage local business and industry to maintain high standards of honesty, fair business practices, and public responsibility in the production, promotion, and sale of consumer goods and services and in the extension of credit;

(9) exercise and perform such other functions and duties consistent with the purposes or provisions of this chapter which may be deemed necessary or appropriate to protect and promote the welfare of District of Columbia consumers;

(10) [repealed];

(11) implead and interplead persons who are properly parties to a case before the Department under section 28-3905;

(12) negotiate, agree to, and sign consent decrees;

(13) determine whether a person has executed a trade practice in violation of any law of the District of Columbia, and provide full remedy for such violation by:

(A) damages in contract, and orders for restitution, rescission, reformation, repair, and replacement,

(B) stipulations, conditions, and directives, both temporary and permanent, of all kinds,

(C) enforcement of orders and decrees, collection of civil penalties, and other activities, in the courts,

(D) and other lawful methods;

(14) maintain both confidential and public records, and publicize its own actions, in accordance with section 28-3905;

(15) [repealed];

(16) appoint private attorneys from the District of Columbia bar, who shall take action in the name of the Department, and shall promulgate regulations implementing this provision, in order to assist in the enforcement of any consumer complaint; and

(17) impose civil fines, pursuant to Chapter 18 of Title 2, as alternative sanctions for any violation of the provisions of this chapter or of any rules issued under the authority of this chapter. Any violation of this chapter, or of any rule issued under the authority of this chapter, shall be a Class 2 infraction pursuant to 16 DCMR § 3200.1(b), unless the violation is classified otherwise pursuant to rules issued by the Department; except, that notwithstanding any other provision of District law or regulation, during a period of time for which the Mayor has declared a public health emergency pursuant to § 7-2304.01, a violation of this chapter or of any rule issued under the authority of this chapter shall be a Class 1 infraction within the meaning of 16 DCMR § 3200.1(a).

(b) The Department shall:

(1) perform the functions of the Mayor, Department of Consumer Affairs, Board of Consumer Goods Repairs Services or Department of Economic Development in:

(A) the District of Columbia Consumer Credit Protection Act of 1971 (Title 28, Chapters 36, 37, 38, et al.),

(B) the District of Columbia Consumer Retail Credit Regulation (16 DCMR Ch. 1),

(C) the District of Columbia Consumer Goods Repair Regulation (16 DCMR Ch. 6); and

(D) the District of Columbia Consumer LayAway Plan Act (section 28-3818);

(2) render annual reports to the Council and the Mayor as to the number of complaints filed and the nature, status, and disposition thereof, and about the other activities of the Department undertaken during the previous year.

(c) The Department may not:

(1) order damages for personal injury of a tortious nature;

(2) apply the provisions of section 28-3905 to:

(A) landlord-tenant relations;

(B) persons subject to regulation by the Public Service Commission of the District of Columbia;

(C) professional services of clergymen, lawyers, and Christian Science practitioners engaging in their respective professional endeavors;

(D) a television or radio broadcasting station or publisher or printer of a newspaper, magazine, or other form of printed advertising, which broadcasts, publishes, or prints an advertisement which violates District law, except insofar as such station, publisher or printer engages in a trade practice which violates District law in selling or offering for sale its own goods or services, or has knowledge of the advertising being in violation of District law; or

(E) an action of an agency of government.

(July 22, 1976, D.C. Law 1-76, § 4, 23 DCR 1185; June 11, 1977, D.C. Law 2-8, § 4(a), 24 DCR 726; Oct. 4, 1978, D.C. Law 2-115, § 3, 25 DCR 1997; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Mar. 8, 1991, D.C. Law 8-234, § 2(d), 38 DCR 296; Feb. 5, 1994, D.C. Law 10-68, § 27(a), (d), 40 DCR 6311; Apr. 9, 1997, D.C. Law 11-255, § 27(w), 44 DCR 1271; Apr. 29, 1998, D.C. Law 12-86, § 1301(b), 45 DCR 1172; Oct. 20, 2005, D.C. Law 16-33, § 2032(c), 52 DCR 7503; Mar. 2, 2007, D.C. Law 16-191,§ 100, 53 DCR 6794; Aug. 16, 2008, D.C. Law 17-219, § 2024, 55 DCR 7598; Feb. 26, 2015, D.C. Law 20-155, § 2012(a), 61 DCR 9990; Oct. 22, 2015, D.C. Law 21-36, § 7029, 62 DCR 10905; June 24, 2021, D.C. Law 24-9, § 305, 68 DCR 004824.)

Prior Codifications

1981 Ed., § 28-3903.

1973 Ed., T. 28, Appx., § 4.

Section References

This section is referenced in § 28-3905, § 28-3906, and § 28-4002.

Effect of Amendments

D.C. Law 16-33 repealed subsecs. (a)(10) and (a)(15), which had read:

“(10) publish rules and regulations governing the Department’s procedures, developed by the Director in accordance with the District of Columbia Administrative Procedure Act ( sections 2-501 et seq.);”

“(15) issue rules that interpret, define, state general policy, or prescribe requirements to prevent unfair, deceptive, and unlawful trade practices as set forth in section 28-3904;”

D.C. Law 16-191, in subsecs. (a)(13)(D) and (14), validated previously made technical corrections.

D.C. Law 17-219, in subsec. (a)(1)(i), substituted “$250” for “$2,500”.

The 2015 amendment by D.C. Law 20-155 added (a)(17) and made related changes.

The 2015 amendment by D.C. Law 21-36 substituted “Chapter 18 of Title 2″ for ” Section 28-3905″ in (a)(17).

Cross References

Hearing aid dealers and consumers, office of consumer protection, powers and duties, see § 28-4002.

Prescription drug price posting, enforcement, cease and desist orders, see § 48-804.03.

Prescription drug price posting, informational posters provided to pharmacies, see § 48-801.02.

Emergency Legislation

For temporary (90 days) amendment of this section, see § 305 of Coronavirus Support Congressional Review Emergency Amendment Act of 2021 (D.C. Act 24-96, June 7, 2021, 68 DCR 006025).

For temporary (90 days) amendment of this section, see § 305 of Coronavirus Support Emergency Amendment Act of 2021 (D.C. Act 24-30, Mar. 17, 2021, 68 DCR 003101).

For temporary (90 days) amendment of this section, see § 305 of Coronavirus Support Second Congressional Review Emergency Amendment Act of 2020 (D.C. Act 23-405, Aug. 19, 2020, 67 DCR 10235).

For temporary (90 days) amendment of this section, see § 305 of Coronavirus Support Congressional Review Emergency Amendment Act of 2020 (D.C. Act 23-328, June 8, 2020, 67 DCR 7598).

For temporary (90 days) amendment of this section, see § 305 of Coronavirus Support Emergency Amendment Act of 2020 (D.C. Act 23-326, May 27, 2020, 67 DCR 7045).

For temporary amendment of section, see § 2 of the Omnibus Regulatory Reform Amendment Act of 1998 Emergency Repealer Act of 1998 (D.C. Act 12-297, March 4, 1998, 45 DCR 1773), and see § 2 of the Omnibus Regulatory Reform Congressional Review Emergency Repealer Act of 1998 (D.C. Act 12-387, July 13, 1998, 45 DCR 4792).

For temporary amendment of section, see § 2 of the Omnibus Regulatory Reform and Alcoholic Beverage Control DC Arena Clarifying Emergency Amendment Act of 1999 (D.C. Act 13-1, January 29, 1999, 46 DCR 2284).

For temporary (90 day) amendment of section, see § 2032(c) of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).

For temporary (90 days) amendment of this section, see § 2012(a) of the Fiscal Year 2015 Budget Support Emergency Act of 2014 (D.C. Act 20-377, July 14, 2014, 61 DCR 7598, 20 STAT 3696).

For temporary (90 days) amendment of this section, see § 2012(a) of the Fiscal Year 2015 Budget Support Congressional Review Emergency Act of 2014 (D.C. Act 20-449, October 10, 2014, 61 DCR 10915, 20 STAT 4188).

For temporary (90 days) amendment of this section, see § 2012(a) of the Fiscal Year 2015 Budget Support Second Congressional Review Emergency Act of 2014 (D.C. Act 20-566, January 9, 2015, 62 DCR 884, 21 STAT 541).

For temporary (90 days) amendment of this section, see § 2(c- 1) of the Fiscal Year 2015 Budget Support Clarification Congressional Review Emergency Amendment Act of 2014 (D.C. Act 20-587, January 13, 2015, 62 DCR 1294, 21 STAT 758).

For temporary (90 days) amendment of this section, see § 7016(c) of the Fiscal Year 2016 Budget Support Emergency Act of 2015 (D.C. Act 21-127, July 27, 2015, 62 DCR 10201).

Temporary Legislation

For temporary (225 days) amendment of this section, see § 305 of Coronavirus Support Temporary Amendment Act of 2021 (D.C. Law 24-9, June 24, 2021, 68 DCR 004824).

For temporary (225 days) amendment of this section, see § 305 of Coronavirus Support Temporary Amendment Act of 2020 (D.C. Law 23-130, Oct. 9, 2020, 67 DCR 8622).

For temporary (225 day) amendment of section, see § 2 of the Cooperative Association Amendment Act of 1998 (D.C. Law 12-117, April 13, 1999, law notification 46 DCR 3839).

For temporary (225 day) amendment of section, see § 2 of the Omnibus Regulatory Reform Temporary Amendment Act of 1999 (D.C. Law 13-3, May 28, 1999, law notification 46 DCR 5303).

For temporary (225 days) amendment of this section, see § 2(c) of the Fiscal Year 2015 Budget Support Clarification Temporary Amendment Act of 2014 (D.C. Law 20-179, March 7, 2015, 62 DCR 424).

Short Title

Short title: Section 2023 of D.C. Law 17-219 provided that subtitle J of title II of the act may be cited as the “Consumer Protection Act of 2008”.

§ 28–3904. Unfair or deceptive trade practices.

*NOTE: This section includes amendments by temporary legislation that will expire on February 4, 2022. To view the text of this section after the expiration of all emergency and temporary legislation, click this link: Permanent Version.*

It shall be a violation of this chapter for any person to engage in an unfair or deceptive trade practice, whether or not any consumer is in fact misled, deceived, or damaged thereby, including to:

(a) represent that goods or services have a source, sponsorship, approval, certification, accessories, characteristics, ingredients, uses, benefits, or quantities that they do not have;

(b) represent that the person has a sponsorship, approval, status, affiliation, certification, or connection that the person does not have;

(c) represent that goods are original or new if in fact they are deteriorated, altered, reconditioned, reclaimed, or second hand, or have been used;

(d) represent that goods or services are of particular standard, quality, grade, style, or model, if in fact they are of another;

(e) misrepresent as to a material fact which has a tendency to mislead;

(e-1) [r]epresent that a transaction confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law;

(f) fail to state a material fact if such failure tends to mislead;

(f-1) [u]se innuendo or ambiguity as to a material fact, which has a tendency to mislead;

(g) disparage the goods, services, or business of another by false or misleading representations of material facts;

(h) advertise or offer goods or services without the intent to sell them or without the intent to sell them as advertised or offered;

(i) advertise or offer goods or services without supplying reasonably expected public demand, unless the advertisement or offer discloses a limitation of quantity or other qualifying condition which has no tendency to mislead;

(j) make false or misleading representations of fact concerning the reasons for, existence of, or amounts of price reductions, or the price in comparison to price of competitors or one’s own price at a past or future time;

(k) falsely state that services, replacements, or repairs are needed;

(l) falsely state the reasons for offering or supplying goods or services at sale or discount prices;

(m) harass or threaten a consumer with any act other than legal process, either by telephone, cards, letters, or any form of electronic or social media;

(n) cease work on, or return after ceasing work on, an electrical or mechanical apparatus, appliance, chattel or other goods, or merchandise, in other than the condition contracted for, or to impose a separate charge to reassemble or restore such an object to such a condition without notification of such charge prior to beginning work on or receiving such object;

(o) replace parts or components in an electrical or mechanical apparatus, appliance, chattel or other goods, or merchandise when such parts or components are not defective, unless requested by the consumer;

(p) falsely state or represent that repairs, alterations, modifications, or servicing have been made and receiving remuneration therefor when they have not been made;

(q) fail to supply to a consumer a copy of a sales or service contract, lease, promissory note, trust agreement, or other evidence of indebtedness which the consumer may execute;

(r) make or enforce unconscionable terms or provisions of sales or leases; in applying this subsection, consideration shall be given to the following, and other factors:

(1) knowledge by the person at the time credit sales are consummated that there was no reasonable probability of payment in full of the obligation by the consumer;

(2) knowledge by the person at the time of the sale or lease of the inability of the consumer to receive substantial benefits from the property or services sold or leased;

(3) gross disparity between the price of the property or services sold or leased and the value of the property or services measured by the price at which similar property or services are readily obtainable in transactions by like buyers or lessees;

(4) that the person contracted for or received separate charges for insurance with respect to credit sales with the effect of making the sales, considered as a whole, unconscionable; and

(5) that the person has knowingly taken advantage of the inability of the consumer reasonably to protect his interests by reasons of age, physical or mental infirmities, ignorance, illiteracy, or inability to understand the language of the agreement, or similar factors;

(s) pass off goods or services as those of another;

(t) use deceptive representations or designations of geographic origin in connection with goods or services;

(u) represent that the subject of a transaction has been supplied in accordance with a previous representation when it has not;

(v) misrepresent the authority of a salesman, representative or agent to negotiate the final terms of a transaction;

(w) offer for sale or distribute any consumer product which is not in conformity with an applicable consumer product safety standard or has been ruled a banned hazardous product under the federal Consumer Product Safety Act (15 U.S.C. § 2051-83), without holding a certificate issued in accordance with section 14(a) of that Act to the effect that such consumer product conforms to all applicable consumer product safety rules (unless the certificate holder knows that such consumer product does not conform), or without relying in good faith on the representation of the manufacturer or a distributor of such product that the product is not subject to a consumer product safety rule issued under that Act;

(x) sell consumer goods in a condition or manner not consistent with that warranted by operation of sections 28:2-312 through 318 of the District of Columbia Official Code, or by operation or requirement of federal law;

(y) violate any provision of the District of Columbia Consumer LayAway Plan Act (section 28-3818);

(z) violate any provision of the Rental Housing Locator Consumer Protection Act of 1979 (section 28-3819) or, if a rental housing locator, to refuse or fail to honor any obligation under a rental housing locator contract;

(z-1) violate any provision of Chapter 46 of this title;

(aa) violate any provision of sections 32-404, 32-405, 32-406, and 32-407;

(bb) refuse to provide the repairs, refunds, or replacement motor vehicles or fails to provide the disclosures of defects or damages required by the Automobile Consumer Protection Act of 1984;

(cc) violate any provision of the Real Property Credit Line Deed of Trust Act of 1987;

(dd) violate any provision of title 16 of the District of Columbia Municipal Regulations;

(ee) violate any provision of the Public Insurance Adjuster Act of 2002 [Chapter 16A of Title 31];

(ff) violate any provision of Chapter 33 of this title;

(gg) violate any provision of the Home Equity Protection Act of 2007 [Chapter 24A of Title 42];

(hh) fail to make a disclosure as required by § 26-1113(a-1);

(ii) violate any provision of Chapter 53 of this title;

(jj) violate any agreement entered into pursuant to section 28-3909(c)(6);

(kk) violate any provision of subchapter 2 of Chapter 38 of this title;

(ll) violate any provision of 17 DCMR § 3013;

(mm) violate any provision of 17 DCMR § 3117; or

(nn) Not Funded.

(July 22, 1976, D.C. Law 1-76, § 5, 23 DCR 1185; Oct. 4, 1978, D.C. Law 2-115, § 3, 25 DCR 1997; June 21, 1980, D.C. Law 3-71, § 3(a), 27 DCR 1891; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Mar. 13, 1985, D.C. Law 5-136, § 16, 31 DCR 5727; Mar. 14, 1985, D.C. Law 5-162, § 9(a), 32 DCR 160; Jan. 28, 1988, D.C. Law 7-67, § 5, 34 DCR 7441; Mar. 8, 1991, D.C. Law 8-234, § 2(e), 38 DCR 296; Mar. 8, 1991, D.C. Law 8-236, § 9, 38 DCR 306; Feb. 5, 1994, D.C. Law 10-68, § 27(e), 40 DCR 6311; July 25, 1995, D.C. Law 11-30, § 7(h), 42 DCR 1547; Apr. 9, 1997, D.C. Law 11-255, § 27(x), 44 DCR 1271; Mar. 27, 2003, D.C. Law 14-256, § 11(b), 50 DCR 238; Mar. 13, 2004, D.C. Law 15-105, § 63, 51 DCR 881; Nov. 24, 2007, D.C. Law 17-42, § 3(b), 54 DCR 9988; Jan. 29, 2008, D.C. Law 17-87, § 7, 54 DCR 11913; Jan. 29, 2008, D.C. Law 17-90, § 3, 54 DCR 11925; Mar. 25, 2009, D.C. Law 17-353, § 222, 56 DCR 1117; Apr. 23, 2013, D.C. Law 19-282, § 2(b)(2), 60 DCR 2132; Feb. 26, 2015, D.C. Law 20-155, § 2012(b), 61 DCR 9990; Apr. 22, 2017, D.C. Law 21-280, § 6(b), 64 DCR 168; July 17, 2018, D.C. Law 22-140, § 2(c), 65 DCR 5970; June 17, 2020, D.C. Law 23-98, § 2(b)(1), 67 DCR 3923; Mar. 16, 2021, D.C. Law 23-187, § 2(b), 68 DCR 001031; June 24, 2021, D.C. Law 24-9, § 302(b), 68 DCR 004824.)

Prior Codifications

1981 Ed., § 28-3904.

1973 Ed., T. 28, Appx., § 5.

Section References

This section is referenced in § 16-4431, § 28-3905, § 28-3909, § 28-4006, and § 38-1312.

Effect of Amendments

D.C. Law 14-256 added subsec. (ee).

D.C. Law 15-105, in subsec. (ee), validated a previously made technical correction.

D.C. Law 17-42, in subsec. (cc), deleted “or” from the end; in subsec. (dd), substituted a semicolon for a period; in subsec. (ee), substituted “; or” for a period; and added subsec. (ff).

D.C. Law 17-87, in subsec. (ee), deleted “or” from the end; in subsec. (ff), substituted “; or” for a period; and added subsec. (gg).

D.C. Law 17-90, in subsec. (ff), deleted “or” from the end; in subsec. (gg), substituted “; or” for a period; and added subsec. (hh).

D.C. Law 17-353 validated previously made technical corrections in pars. (ff), (gg), and (hh).

The 2013 amendment by D.C. Law 19-282 added (e-1) and (f-1).

The 2015 amendment by D.C. Law 20-155 rewrote (m).

Cross References

Automobile Consumer Protection Act, limitations of actions, see § 50-507.

Automobile Consumer Protection Act, rules and regulations for implementation, see § 50-508.

Education licensure commission, criminal sanctions, fines and penalties, see § 38-1312.

Employment Services Licensing and Regulation Act, penalties for violations, see § 32-414.

Hearing aid dealers and consumers, grounds for revocation and suspension, see § 28-4006.

Applicability

Applicability of D.C. Law 23-187: § 3 of D.C. Law 23-187 provided that the change made to this section by § 2(b) of D.C. Law 23-187 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.

Emergency Legislation

For temporary (90 days) amendment of this section, see § 302(b) of Coronavirus Support Congressional Review Emergency Amendment Act of 2021 (D.C. Act 24-96, June 7, 2021, 68 DCR 006025).

For temporary (90 days) amendment of this section, see § 302(b) of Coronavirus Support Emergency Amendment Act of 2021 (D.C. Act 24-30, Mar. 17, 2021, 68 DCR 003101).

For temporary (90 days) amendment of this section, see § 302(b) of Coronavirus Support Second Congressional Review Emergency Amendment Act of 2020 (D.C. Act 23-405, Aug. 19, 2020, 67 DCR 10235).

For temporary (90 days) amendment of this section, see § 302(b) of Coronavirus Support Congressional Review Emergency Amendment Act of 2020 (D.C. Act 23-328, June 8, 2020, 67 DCR 7598).

For temporary (90 days) amendment of this section, see § 302(b) of Coronavirus Support Emergency Amendment Act of 2020 (D.C. Act 23-326, May 27, 2020, 67 DCR 7045).

For temporary (90 days) amendment of this section, see § 2012(b) of the Fiscal Year 2015 Budget Support Emergency Act of 2014 (D.C. Act 20-377, July 14, 2014, 61 DCR 7598, 20 STAT 3696).

For temporary (90 days) amendment of this section, see § 2012(b) of the Fiscal Year 2015 Budget Support Congressional Review Emergency Act of 2014 (D.C. Act 20-449, October 10, 2014, 61 DCR 10915, 20 STAT 4188).

For temporary (90 days) amendment of this section, see § 2012(b) of the Fiscal Year 2015 Budget Support Second Congressional Review Emergency Act of 2014 (D.C. Act 20-566, January 9, 2015, 62 DCR 884, 21 STAT 541).

Temporary Legislation

For temporary (225 days) amendment of this section, see § 302(b) of Coronavirus Support Temporary Amendment Act of 2021 (D.C. Law 24-9, June 24, 2021, 68 DCR 004824).

For temporary (225 days) amendment of this section, see § 302(b) of Coronavirus Support Temporary Amendment Act of 2020 (D.C. Law 23-130, Oct. 9, 2020, 67 DCR 8622).

References in Text

The Public Insurance Adjuster Licensure Act of 2002, referred to in subsec. (ee), is D.C. Law 14-256.

The “Automobile Consumer Protection Act of 1984”, referred to in paragraph (bb) of this section, is D.C. Law 5-162, codified as Chapter 5 of Title 50.

The “Real Property Credit Line Deed of Trust Act of 1987,” referred to in subsection (cc) of this section, is codified as Chapter 23 of Title 42.

Effective Dates

Section 4 of D.C. Law 17-42 provided: “This act shall take effect following the certification by the Chief Financial Officer, through a revised quarterly revenue estimate for fiscal year 2008, that local funds exceed the annual revenue estimates incorporated in the fiscal year 2008 budget and financial plan in an amount sufficient to account for its fiscal effect. The Chief Financial Officer shall set aside revenue to account for the cost of fully implementing this act.”

Editor’s Notes

Application of D.C. Law 14-256 including the amendments to this section: See section 12 of D.C. Law 14-256, codified as § 31-1631.12.

§ 28–3905. Complaint procedures.

(a) A case is begun by filing with the Department a complaint plainly describing a trade practice and stating the complainant’s (and, if different, the consumer’s) name and address, the name and address (if known) of the respondent, and such other information as the Director may require. The complaint must be in or reduced by the Director to writing. The filing of a complaint with the Department shall toll the periods for limitation of time for bringing an action as set out in section 12-301 until the complaint has been resolved through an administrative order, consent decree, or dismissal in accordance with this section or until an opportunity to arbitrate has been provided in Chapter 5 of Title 50.

(b)(1) Except as provided in paragraph (2) of this subsection, the Director shall investigate each such complaint and determine:

(A) What trade practice actually occurred; and

(B) Whether the trade practice which occurred violates any statute, regulation, rule of common law, or other law of the District of Columbia.

(2) The Director may, in his or her discretion, decline to prosecute certain cases as necessary to manage the Department’s caseload and control program costs.

(b-1) In carrying out an investigation and determination pursuant to subsection (b) of this section, the Director shall consult the respondent and such other available sources of information, and make such other efforts, as are appropriate and necessary to carry out such duties.

(c) If at any time the Director finds that the trade practice complained of may, in whole or in part, be a violation of law other than a law of the District of Columbia or a law within the jurisdiction of the Department, the Director may in writing so inform the complainant, respondent and officials of the District, the United States, or other jurisdiction, who would properly enforce such law.

(d) The Director shall determine that there are, or are not, reasonable grounds to believe that a trade practice, in violation of a law of the District of Columbia within the jurisdiction of the Department, has occurred in any part or all of the case. The Director may find that there are not such reasonable grounds for any of the following reasons:

(1) any violation of law which may have occurred is of a law not of the District of Columbia or not within the jurisdiction of the Department, or occurred more than three years prior to the filing of the complaint;

(2) in case paragraph (1) of this subsection does not apply, no trade practice occurred in violation of any law of the District;

(3) the respondent cannot be identified or located, or would not be subject to the personal jurisdiction of a District of Columbia court;

(4) the complainant, to the Director’s knowledge, no longer seeks redress in the case;

(5) the complainant and respondent, to the Director’s knowledge, have themselves reached an agreement which settles the case; or

(6) the complainant can no longer be located.

(d-1) The Director may dismiss any part or all of a case to which one or more of the reasons stated in subsection (d) of this section apply. The Director shall inform all parties in writing of the determination, and, if any part or all of the case is dismissed, shall specify which of the reasons in this subsection applies to which part of the case, and such other detail as is necessary to explain the dismissal.

(e) The Director may attempt to settle, in accordance with subsection (h) of this section, each case for which reasonable grounds are found in accordance with subsection (d-1) of this section. After the Director’s determination as to whether the complaint is within the Department’s jurisdiction, in accordance with subsection (d-1) of this section, the Director shall:

(1) effect a consent decree;

(2) dismiss the case in accordance with subsection (h)(2) of this section;

(3) through the Chief of the Office of Compliance present to the Office of Adjudication, with copies to all parties, a brief and plain statement of each trade practice that occurred in violation of District law, the law the trade practice violates, and the relief sought from the Office of Adjudication for violation; or

(4) notify all parties of another action taken, with the reasons therefor stated in detail and supported by fact. Reasons may include:

(A) any reason listed in subsections (d)(1) through (d)(6) of this section; and

(B) that the presentation of a charge to the Office of Adjudication would not serve the purposes of this chapter.

(5) Repealed.

(f) When the case is transmitted to the Office of Adjudication, the Chief of the Office of Compliance shall sign, and serve the respondent, the Department’s summons to answer or appear before the Office of Adjudication. Not less than 15 nor more than 90 days after such transmittal, the case shall be heard. The case shall proceed under section 10 of the District of Columbia Administrative Procedure Act (section 2-509). The Office of Adjudication may, without delaying its hearing or decision, attempt to settle the case pursuant to subsection (h) of this section, and has discretion to permit any stipulation or consent decree the parties agree to. The Director shall be a party on behalf of the complainant. Applications to intervene shall be decided as may be proper or required by law or rule. Reasonable discovery shall be freely allowed. Any finding or decision may be modified or set aside, in whole or part, before a notice of appeal is filed in the case, or the time to so file has run out.

(g) If, after hearing the evidence, the Office of Adjudication decides a trade practice occurred in which the respondent violated a law of the District of Columbia within the jurisdiction of the Department, such Office of Adjudication shall issue an order which:

(1) shall require the respondent to cease and desist from such conduct;

(2) shall, if such Office of Adjudication also decides that the consumer has been injured by the trade practice, order redress through contract damages, restitution for money, time, property or other value received from the consumer by the respondent, or through rescission, reformation, repair, replacement, or other just method;

(3) shall state the number of trade practices the respondent performed in violation of law;

(4) shall, absent good cause found by the Office of Adjudication, require the respondent to pay the Department its costs for investigation, negotiation, and hearing;

(5) may include such other findings, stipulations, conditions, directives, and remedies including punitive damages, treble damages, or reasonable attorney’s fees, as are reasonable and necessary to identify, correct, or prevent the conduct which violated District law; and

(6) may be based, in whole or part, upon a violation of a law establishing or regulating a type of business, occupational or professional license or permit, and may refer the case for further proceedings to an appropriate board or commission, but may not suspend or revoke a license or permit if there is a board or commission which oversees the specific type of license or permit.

(h)(1) At any time after reasonable grounds are found in accordance with subsection (d) of this section, the respondent, the Department (represented by (i) the Director prior to transmittal to the Office of Adjudication and after an order issued pursuant to subsection (f) of this section has been appealed, and (ii) the Office of Adjudication after transmittal to the Office of Adjudication and prior to such appeal), and the complainant, may agree to settle all or part of the case by a written consent decree which may:

(A) include any provision described in subsection (g)(2) through (6) of this section;

(B) not contain an assertion that the respondent has violated a law;

(C) contain an assurance that the respondent will refrain from a trade practice;

(D) bar the Department from further action in the case, or a part thereof; or

(E) contain such other provisions or considerations as the parties agree to.

(2) The representative of the Department shall administer the settlement proceedings, and may utilize the good offices of the Advisory Committee on Consumer Protection. All settlement proceedings shall be informal and include all interested parties and such representatives as the parties may choose to represent them. Such proceedings shall be private, and nothing said or done, except a consent decree, shall be made public by the Department, any party, or the Advisory Committee, unless the parties agree thereto in writing. The representative of the Department may call settlement conferences. For persistent and unreasonable failure by the complainant to attend such conferences or to take part in other settlement proceedings, the Director, prior to transmittal to the Office of Adjudication, may dismiss the case.

(3) A consent decree described in paragraph (1) of this subsection may be modified by agreement of the Department, complainant and respondent.

(i)(1) An aggrieved party may appeal to the District of Columbia Court of Appeals after:

(A) the Office of Adjudication decides a case pursuant to subsection (f) of this section;

(B) all parts of a case have been dismissed by operation of subsection (d) or (e) of this section; or

(C) the Director dismisses an entire case in accordance with subsection (h)(2) of this section.

(1A) Such appeals shall be conducted in accordance with the procedures and standards of section 11 of the District of Columbia Administrative Procedure Act (section 2-510), and take into account the procedural duties placed upon the Department in this section and all actions taken by the Department in the case.

(2) An aggrieved party may appeal any ruling of the Office of Adjudication under subsection (j) of this section to the Superior Court of the District of Columbia.

(3)(A) Any person found to have executed a trade practice in violation of a law of the District within the jurisdiction of the Department may be liable for a civil penalty not exceeding $1,000 for each failure to adhere to a provision of an order described in subsection (f), (g), or (j) of this section, or a consent decree described in subsection (h) of this section.

(B) The Department, the complainant, or the respondent may sue in the Superior Court of the District of Columbia for a remedy, enforcement, or assessment or collection of a civil penalty, when any violation, or failure to adhere to a provision of a consent decree described in subsection (h) of this section, or an order described in subsection (f), (g), or (j) of this section, has occurred. The Department shall sue in that Court for assessment of a civil penalty when an order described in subsection (g) of this section has been issued and become final. A failure by the Department or any person to file suit or prosecute under this subparagraph in regard to any provision or violation of a provision of any consent decree or order, shall not constitute a waiver of such provision or any right under such provision. The Court shall levy the appropriate civil penalties, and may order, if supported by evidence, temporary, preliminary, or permanent injunctions, damages, treble damages, reasonable attorney’s fees, consumer redress, or other remedy. The Court may set aside the final order if the Court determines that the Department of Consumer and Regulatory Affairs lacked jurisdiction over the respondent or that the complaint was frivolous. If, after considering an application to set aside an order of the Department of Consumer and Regulatory Affairs, the Court determines that the application was frivolous or that the Department of Consumer and Regulatory Affairs lacked jurisdiction, the Court shall award reasonable attorney’s fees.

(C) Application to the Court to enforce an order shall be made at no cost to the District of Columbia or the complainant.

(4) The Attorney General for the District of Columbia shall represent the Department in all proceedings described in this subsection.

(j) If, at any time before notice of appeal from a decision made according to subsection (f) of this section is filed or the time to so file has run out, the Director believes that legal action is necessary to preserve the subject matter of the case, to prevent further injury to any party, or to enable the Department ultimately to order a full and fair remedy in the case, the Chief of the Office of Compliance shall present the matter to the Office of Adjudication, which may issue a cease and desist order to take effect immediately, or grant such other relief as will assure a just adjudication of the case, in accordance with such beliefs of the Director which are substantiated by evidence. The Office of Adjudication’s ruling may be appealed to court within 7 days of notice thereof on the Director, respondent, and complainant.

(k)(1)(A) A consumer may bring an action seeking relief from the use of a trade practice in violation of a law of the District.

(B) An individual may, on behalf of that individual, or on behalf of both the individual and the general public, bring an action seeking relief from the use of a trade practice in violation of a law of the District when that trade practice involves consumer goods or services that the individual purchased or received in order to test or evaluate qualities pertaining to use for personal, household, or family purposes.

(C) A nonprofit organization may, on behalf of itself or any of its members, or on any such behalf and on behalf of the general public, bring an action seeking relief from the use of a trade practice in violation of a law of the District, including a violation involving consumer goods or services that the organization purchased or received in order to test or evaluate qualities pertaining to use for personal, household, or family purposes.

(D)(i) Subject to sub-subparagraph (ii) of this subparagraph, a public interest organization may, on behalf of the interests of a consumer or a class of consumers, bring an action seeking relief from the use by any person of a trade practice in violation of a law of the District if the consumer or class could bring an action under subparagraph (A) of this paragraph for relief from such use by such person of such trade practice.

(ii) An action brought under sub-subparagraph (i) of this subparagraph shall be dismissed if the court determines that the public interest organization does not have sufficient nexus to the interests involved of the consumer or class to adequately represent those interests.

(2) Any claim under this chapter shall be brought in the Superior Court of the District of Columbia and may recover or obtain the following remedies:

(A)(i) Treble damages, or $1,500 per violation, whichever is greater, payable to the consumer;

(ii) Notwithstanding sub-subparagraph (i) of this subparagraph, for a violation of § 28-3904(kk) a consumer may recover or obtain actual damages. Actual damages shall not include dignitary damages, including pain and suffering.

(B) Reasonable attorney’s fees;

(C) Punitive damages;

(D) An injunction against the use of the unlawful trade practice;

(E) In representative actions, additional relief as may be necessary to restore to the consumer money or property, real or personal, which may have been acquired by means of the unlawful trade practice; or

(F) Any other relief which the court determines proper.

(3) Any written decision made pursuant to subsection (f) of this section is admissible as prima facie evidence of the facts stated therein.

(4) If a merchant files in any court a suit seeking to collect a debt arising out of a trade practice from which has also arisen a complaint filed with the Department by the defendant in the suit either before or after the suit was filed, the court shall dismiss the suit without prejudice, or remand it to the Department.

(5) An action brought by a person under this subsection against a nonprofit organization shall not be based on membership in such organization, membership services, training or credentialing activities, sale of publications of the nonprofit organization, medical or legal malpractice, or any other transaction, interaction, or dispute not arising from the purchase or sale of consumer goods or services in the ordinary course of business.

(6) The right of action established by this subsection shall apply to trade practices arising from landlord-tenant relations.

(l) The Director and Office of Adjudication may use any power granted to the Department in section 28-3903, as each reasonably deems will aid in carrying out the functions assigned to each in this section. Each, while holding the primary responsibility of the Department for decision in a certain case, may join such case with others then before the Department. No case may be disposed of in a manner not expressly authorized in this section. Every complaint case filed with the Department and within its jurisdiction shall be decided in accordance with the procedures and sanctions of this section, notwithstanding that a given trade practice, at issue in the case, may be governed in whole or in part by another law which has different enforcement procedures and sanctions.

(m)(1) Whenever requested, the Department will make available to the complainant and respondent an explanation, and any other information helpful in understanding, the provisions of any consent decree to which the Department agrees, and any order or decision which the Department makes.

(2) The Director shall maintain a public index for all the cases on which the Department has made a final action or a consent decree, organized by:

(A) name of complainant;

(B) name of respondent;

(C) industry of the merchant involved;

(D) nature of the violation of District law alleged or found to exist (for example, subsection of section 28-3904 involved, or section of a licensing law involved);

(E) final disposition.

(n) There shall be established a Consumer Protection Education Fund (“Fund”). All monies awarded to or paid to the Department by operation of this section, including final judgements, consent decrees, or settlements reduced to final judgements, shall be paid into the Fund in order to further the purpose of this chapter as enumerated in § 28-3901.

(o) Every complaint case that is before the Department in accordance with this section shall proceed in confidence, except for hearings and meetings before the Office of Adjudication, until the Department makes a final action or a consent decree.

(p) The Director may file a complaint in accordance with subsection (a) of this section, on behalf of one or more consumers or as complainant, based on evidence and information gathered by the Department in carrying out this chapter. Persons not parties to but directly or indirectly intended as beneficiaries of an order described in subsection (f), (g), or (j) of this section, or a consent decree described in subsection (h) of this section, arising out of a complaint filed by the Director, may enforce such order or decree in the manner provided in subsection (i)(3)(B) of this section.

(q) At any hearing pursuant to subsection (f) or (j) of this section, a witness has the right to be advised by counsel present at such hearing. In any process under this section, the complainant and respondent may have legal or other counsel for representation and advice.

(r) All cases for which complaints were filed before March 5, 1981, may be presented to and heard by the Office of Adjudication notwithstanding the time limits previously provided in section 28-3905(d), 28-3905(e), and 28-3905(f) for the investigation and transmittal of cases to the Office of Adjudication, and for the hearing of cases by the Office of Adjudication.

(July 22, 1976, D.C. Law 1-76, § 6, 23 DCR 1185; June 11, 1977, D.C. Law 2-8, § 4(b), 24 DCR 726; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Mar. 5, 1981, D.C. Law 3-159, §§ 2(b), (c), 3, 27 DCR 5147; Mar. 8, 1991, D.C. Law 8-234, § 2(f), 38 DCR 296; Feb. 5, 1994, D.C. Law 10-68, § 27(f), 40 DCR 6311; Apr. 9, 1997, D.C. Law 11-255, § 27(y), 44 DCR 1271; Apr. 29, 1998, D.C. Law 12-86, § 1301(c), 45 DCR 1172; Oct. 19, 2000, D.C. Law 13-172, § 1402(d), 47 DCR 6308; Oct. 20, 2005, D.C. Law 16-33, § 2032(d), 52 DCR 7503; June 12, 2007, D.C. Law 17-4,§ 2(b), 54 DCR 4085; Apr. 23, 2013, D.C. Law 19-282, § 2(b)(3), 60 DCR 2132; Feb. 26, 2015, D.C. Law 20-155, § 2012(c), 61 DCR 9990; Feb. 22, 2019, D.C. Law 22-206, § 2(a), 65 DCR 12363; June 17, 2020, D.C. Law 23-98, § 2(b)(2), 67 DCR 3923.)

Prior Codifications

1981 Ed., § 28-3905.

1973 Ed., T. 28, Appx., § 6.

Section References

This section is referenced in § 28-3818, § 28-3901, § 28-3902, § 28-3903, § 28-3906, and § 28-4002.

Effect of Amendments

D.C. Law 13-172 added the introductory sentence to subsec. (k)(2) pertaining to the penalties being cumulative and additional and rewrote subsec. (k)(1).

D.C. Law 16-33 rewrote subsec. (b), which had read:

“(b) The Director shall investigate each such complaint and determine:

“(1) what trade practice actually occurred, and

“(2) whether the trade practice which occurred violates any statute, regulation, rule of common law, or other law, of the District of Columbia.”

D.C. Law 17-4 added subsec. (k)(5).

The 2013 amendment by D.C. Law 19-282 rewrote (k)(1) and (k)(2).

The 2015 amendment by D.C. Law 20-155 rewrote (i)(3)(A).

Cross References

Hearing aid dealers and consumers, office of consumer protection, powers and duties, see § 28-4002.

Emergency Legislation

For temporary (90-day) amendment of section, see § 1402(d) of the Fiscal Year 2001 Budget Support Emergency Act of 2000 (D.C. Act 13-376, July 24, 2000, 47 DCR 6574).

For temporary (90 day) amendment of section, see § 1402(d) of the Fiscal Year 2001 Budget Support Congressional Review Emergency Act of 2000 (D.C. Act 13-438, October 20, 2000, 47 DCR 8740).

For temporary (90 day) amendment of section, see § 2032(d) of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).

For temporary (90 days) amendment of this section, see § 2012(c) of the Fiscal Year 2015 Budget Support Emergency Act of 2014 (D.C. Act 20-377, July 14, 2014, 61 DCR 7598, 20 STAT 3696).

For temporary (90 days) amendment of this section, see § 2012(c) of the Fiscal Year 2015 Budget Support Congressional Review Emergency Act of 2014 (D.C. Act 20-449, October 10, 2014, 61 DCR 10915, 20 STAT 4188).

For temporary (90 days) amendment of this section, see § 2012(c) of the Fiscal Year 2015 Budget Support Second Congressional Review Emergency Act of 2014 (D.C. Act 20-566, January 9, 2015, 62 DCR 884, 21 STAT 541).

§ 28–3906. Consumer education and information.

(a) The Office of Consumer Protection is established within the Department. The Office of Consumer Protection shall:

(1) Inform the public and the business community of existing laws, regulations, and guidelines concerning consumer rights and standards of fair treatment;

(2) Coordinate consumer education programs with, and use consumer education programs to help carry out, the consumer protection programs of the Department, including enforcement options through the Department and the Office of the Attorney General and before the courts;

(2A) Develop a consumer education program to educate consumers about the appropriateness of video and computer games for certain age groups, which may include information on video and computer game rating systems and the manner in which parental controls can enhance the ability of parents to regulate their children’s access to video and computer games;

(3) Handle publicity for the Department concerning cases under § 28-3905 when the Director requests;

(4) Aid the Director in the formulation of consumer protection plans and recommend legislation and regulations related to consumer education;

(5) Cooperate with consumer-related agencies, groups, and individuals in the District of Columbia metropolitan area to improve consumer education efforts; and

(6) Perform the functions of the Department under § 28-3903(7) and (8) [§ 28-3903(a)(7) and (8)].

(b) The Chief of the Office of Consumer Protection shall be appointed by the Director.

(c) In fiscal year 2006, the Office of Consumer Protection shall focus on investigation and mediation in the areas of auto repair and home improvement.

(July 22, 1976, D.C. Law 1-76, § 7, 23 DCR 1185; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Mar. 8, 1991, D.C. Law 8-234,§ 2(g), 38 DCR 296; Oct. 20, 2005, D.C. Law 16-33, § 2032(e), 52 DCR 7503; Mar. 6, 2007, D.C. Law 16-218, § 2, 53 DCR 10209.)

Prior Codifications

1981 Ed., § 28-3906.

1973 Ed., T. 28, Appx., § 7.

Section References

This section is referenced in § 28-3901.

Effect of Amendments

D.C. Law 16-33, rewrote section, which had read:

“(a) The Office of Consumer Education and Information shall:

“(1) inform the public and the business community of existing laws, regulations and guidelines concerning consumer rights and standards of fair treatment;

“(2) coordinate consumer education programs with, and use consumer education programs to help carry out, the consumer protection programs of the Office;

“(3) handle publicity for the Office Department concerning cases under section 28-3905, when the Director requests;

“(4) aid the Director in the formulation of consumer protection plans and recommend legislation and regulations related to consumer education;

“(5) cooperate with consumer-related agencies, groups and individuals in the D.C. area to improve consumer education efforts.

“(b) The Chief of the Office of Consumer Education and Information shall be appointed by the Director.”

D.C. Law 16-218, in subsec. (a), added par. (2A).

Emergency Legislation

For temporary (90 day) amendment of section, see § 2032(e) of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).

Editor’s Notes

The bracketed language has been inserted in (a)(3) to correct an error in D.C. Law 8-234.

§ 28–3907. Advisory Committee on Consumer Protection.

(a) There shall be an Advisory Committee on Consumer Protection consisting of 11 members appointed by the Mayor for three-year terms. The nongovernmental members, immediately prior to the effective date of this chapter, of the Advisory Committee on Consumer Affairs established in Organization Order No. 40 (C.O. 73-225; October 3, 1973), shall carry out their terms. No District Government employees shall be members. Four members shall be District merchants. Seven members shall be persons with demonstrated and current records of activity on behalf of consumers.

(b) The Committee shall:

(1) recommend priorities in, and, at the Committee’s discretion, carry out investigations and research, which concern broad, developing, or frequently encountered consumer problems;

(2) assist the Director as the Director may request;

(3) monitor the performance and organization of the Office, by quantitative and qualitative methods, and make recommendations and criticisms, based thereon; and

(4) cooperate with consumer-related agencies, groups, and individuals in the District and in the metropolitan area to improve city-wide and area-wide consumer protection and education efforts.

(c) The Committee shall elect one of its members as Chairperson and another as Vice-Chairperson, each to serve at the pleasure of the Committee, and such other officers and subcommittees as it determines.

(d) The Office shall provide staff support for the Advisory Committee. Appropriate expenses incurred by the Committee as a whole, or by individual members, may be paid when authorized by the Director.

(e) The Committee shall meet on call by the Chairperson as frequently as required to perform its duties, but no less than once each month, and it shall submit an annual report to the Mayor, Council, and the public.

(f) The Committee shall hold public hearings as deemed necessary.

(July 22, 1976, D.C. Law 1-76, § 8, 23 DCR 1185; Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Apr. 9, 1997, D.C. Law 11-255, § 27(z), 44 DCR 1271.)

Prior Codifications

1981 Ed., § 28-3907.

1973 Ed., T. 28, Appx., § 8.

Section References

This section is referenced in § 28-3901.

§ 28–3908. Severability.

If any provision of this chapter, or the application thereof to any person or circumstance, is held invalid, the remainder of this chapter, and the application of such provision to other persons not similarly situated or to other circumstances, shall not be affected.

(July 22, 1976, D.C. Law 1-76, § 9, 23 DCR 1185; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900.)

Prior Codifications

1981 Ed., § 28-3908.

1973 Ed., T. 28, Appx., § 9.

§ [28-3909.01]. Attorney General Authority.

*NOTE: This section was created by temporary legislation that will expire on February 4, 2022.*

Notwithstanding any District law, the Attorney General for the District of Columbia may use the enforcement authority set forth at [§ 28-3909] against any merchant, including a utility provider, that violates any provisions of this act (D.C. Law 24-9).

(June 24, 2021, D.C. Law 24-9, § 307(g), 68 DCR 004824.)

Emergency Legislation

For temporary (90 days) creation of this section, see § 307(g) of Coronavirus Support Congressional Review Emergency Amendment Act of 2021 (D.C. Act 24-96, June 7, 2021, 68 DCR 006025).

For temporary (90 days) creation of this section, see § 307(g) of Coronavirus Support Emergency Amendment Act of 2021 (D.C. Act 24-30, Mar. 17, 2021, 68 DCR 003101).

For temporary (90 days) creation of this section, see § 307(g) of Coronavirus Support Congressional Review Emergency Amendment Act of 2020 (D.C. Act 23-328, June 8, 2020, 67 DCR 7598).

For temporary (90 days) creation of this section, see § 307(g) of Coronavirus Support Emergency Amendment Act of 2020 (D.C. Act 23-326, May 27, 2020, 67 DCR 7045).

Temporary Legislation

For temporary (225 days) creation of this section, see § 307(g) of Coronavirus Support Temporary Amendment Act of 2021 (D.C. Law 24-9, June 24, 2021, 68 DCR 004824).

§ 28–3910. Investigatory powers of Attorney General [for the District of Columbia].

(a) In the course of an investigation to determine whether to seek relief under section 28-3909, the Attorney General for the District of Columbia may subpoena witnesses, administer oaths, examine an individual under oath, and compel production of records, books, papers, contracts, and other documents. Information obtained under this section is not admissible in a later criminal proceeding against the person who provides the evidence.

(b) A subpoena issued pursuant to subsection (a) of this section shall be issued in accordance with [§  1-301.89c].

(Oct. 19, 2000, D.C. Law 13-172, § 1402(f), 47 DCR 6308; Oct. 22, 2015, D.C. Law 21-36, § 1036, 62 DCR 10905; July 17, 2018, D.C. Law 22-140, § 2(e), 65 DCR 5970.)

Effect of Amendments

The 2015 amendment by D.C. Law 21-36 designated the existing text as (a); and added (b).

Emergency Legislation

For temporary (90 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Congressional Review Emergency Amendment Act of 2018 (D.C. Act 22-486, Oct. 22, 2018, 65 DCR12042).

For temporary (90 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Emergency Amendment Act of 2018 (D.C. Act 22-402, July 16, 2018, 65 DCR 7518).

For temporary (90 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Emergency Amendment Act of 2017 (D.C. Act 22-164, Oct. 23, 2017, 64 DCR 10790).

For temporary (90 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Congressional Review Emergency Amendment Act of 2017 (D.C. Act 22-23, Mar. 27, 2017, 64 DCR 3065).

For temporary (90 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Emergency Amendment Act of 2016 (D.C. Act 21-576, Dec. 19, 2016, 63 DCR 15695).

For temporary (90-day) addition of section, see § 1402(f) of the Fiscal Year 2001 Budget Support Emergency Act of 2000 (D.C. Act 13-376, July 24, 2000, 47 DCR 6574).

For temporary (90 day) addition of section, see § 1402(f) of the Fiscal Year 2001 Budget Support Congressional Review Emergency Act of 2000 (D.C. Act 13-438, October 20, 2000, 47 DCR 8740).

For temporary (90 days) amendment of this section, see § 1036 of the Fiscal Year 2016 Budget Support Emergency Act of 2015 (D.C. Act 21-127, July 27, 2015, 62 DCR 10201).

Temporary Legislation

For temporary (225 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Temporary Amendment Act of 2018 (D.C. Law 22-172, Oct. 30, 2018, 65 DCR 9540).

For temporary (225 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Temporary Amendment Act of 2017 (D.C. Law 22-45, Jan. 25, 2018, 64 DCR 12399).

For temporary (225 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Temporary Amendment Act of 2016 (D.C. Law 21-271, Apr. 15, 2017, 64 DCR 944).

§ 28–3911. District of Columbia Consumer Protection Fund. [Repealed]

Repealed.

(Oct. 19, 2000, D.C. Law 13-172, § 1402(f), 47 DCR 6308; Mar. 8, 2007, D.C. Law 16-237, § 2(d), 54 DCR 393; Sept. 18, 2007, D.C. Law 17-20, § 3023, 54 DCR 7052; Jan. 23, 2008, D.C. Law 17-68, § 2, 54 DCR 11648; Mar. 3, 2010, D.C. Law 18-111, § 3002, 57 DCR 181; Sept. 14, 2011, D.C. Law 19-21, § 9003(a), 58 DCR 6226.)

Emergency Legislation

For temporary (90-day) addition of section, see § 1402(f) of the Fiscal Year 2001 Budget Support Emergency Act of 2000 (D.C. Act 13-376, July 24, 2000, 47 DCR 6574).

For temporary (90 day) addition of section, see § 1402(f) of the Fiscal Year 2001 Budget Support Congressional Review Emergency Act of 2000 (D.C. Act 13-438, October 20, 2000, 47 DCR 8740).

For temporary (90 day) addition of section, see § 2(b) of Residential Water Lead Level Test Emergency Act of 2004 (D.C. Act 15-436, May 25, 2004, 51 DCR 5953).

For temporary (90 day) amendment of section, see § 2 of District of Columbia Consumer Protection Fund Emergency Amendment Act of 2007 (D.C. Act 17-64, June 28, 2007, 54 DCR 7046).

For temporary (90 day) amendment of section, see § 3023 of Fiscal Year 2008 Budget Support Emergency Act of 2007 (D.C. Act 17-74, July 25, 2007, 54 DCR 7549).

For temporary (90 day) amendment of section, see § 2 of District of Columbia Consumer Protection Fund Congressional Review Emergency Act of 2007 (D.C. Act 17-138, October 17, 2007, 54 DCR 10729).

For temporary (90 day) amendment of section, see § 3002 of Fiscal Year 2010 Budget Support Second Emergency Act of 2009 (D.C. Act 18-207, October 15, 2009, 56 DCR 8234).

For temporary (90 day) amendment of section, see § 3002 of Fiscal Year Budget Support Congressional Review Emergency Amendment Act of 2009 (D.C. Act 18-260, January 4, 2010, 57 DCR 345).

Temporary Legislation

For temporary (225 day) amendment of section, see § 2 of the District of Columbia Consumer Protection Fund Temporary Amendment Act of 2007 (D.C. Law 17-34, October 18, 2007, law notification 54 DCR 10704).

Short Title

Short title: Section 3001 of D.C. Law 18-111 provided that subtitle A of title III of the act may be cited as the “Consumer Protection Funds Act of 2009”.

Editor’s Notes

Section 9052(b) of D.C. Law 19-21 purported to amended this section which was repealed by section 9003(a) of Law 19-21.

§ 28–3912. Submissions to the Council.

The Department shall, in coordination with the Office of the Attorney General, submit 2 plans to the Council:

(1) A detailed plan for fiscal year 2006 on the steps that the Department shall take in providing consumer protection education in the District, including the dissemination of information regarding legal options through the Department and before the Office of the Attorney General and the Courts, to be submitted by September 1, 2005; and

(2) A plan to fully implement this subchapter in fiscal year 2007, including any recommended amendments to this subchapter, to be submitted by February 1, 2006, in anticipation of the fiscal year 2007 budget.

(Oct. 20, 2005, D.C. Law 16-33, § 2032(f), 52 DCR 7503.)

Emergency Legislation

For temporary (90 day) addition, see § 2032(f) of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).

§ 28–3913. Rules.

The Mayor may issue rules necessary to carry out this chapter. Rules proposed pursuant to this section shall be submitted to the Council for a 45-day period of review, excluding Saturdays, Sundays, legal holidays, and days of Council recess. If the Council does not approve or disapprove the proposed rules, in whole or in part, by resolution, within this 45-day review period, the proposed rules shall be deemed disapproved.

(Oct. 20, 2005, D.C. Law 16-33, § 2032(f), 52 DCR 7503.)

Emergency Legislation

For temporary (90 day) addition, see § 2032(f) of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).


Consumer Product Safety Commission and Recalls: A Primer

1.    Consumer Product Safety Commission (CPSC) only has jurisdiction over consumer products.

To define “consumer products” under the CPSC you start with everything and then subtract from everything the following.

  • Food
  • Drugs
  • Cosmetics
  • Medical devices
  • Tobacco products
  • Firearms and ammunition
  • Motor vehicles
  • Pesticides
  • Aircraft
  • Boats
  • Fixed site amusement rides

The classification is also identified as anything that is:

  1. For sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise;
  2. For the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise (15 U.S.C. § 2052).

The term in recreation then is an outdoor recreation, adventure travel and a cycling catch all. All outdoor products are considered consumer products and subject to the CPSC.

Bicycles are a special classification of the CPSC over which the CPSC has broad powers and greater authority and control.

2.    Who Must Report if you are in the OR Industry?

Manufacturers, importers, distributors and retailers are all equally liable under the CPSA (Consumer Product Safety Act) and are all equally responsible to report defective products (15 U.S.C. § 2064(b)). The person who brings the product into the US if it is not manufactured in the US is responsible along with all other people in the chain of distribution.

A “distributor” is defined as “a person to whom a consumer product is delivered or sold for purposes of distribution in commerce, except that such term does not include a manufacturer or retailer of such a product (15 U.S.C. § 2052(a)(7)). Consequently, the definition of a distributor is very broad and covers any entity from the docks to the retailer.

A “retailer” is defined as “a person to whom a consumer product is delivered or sold for purposes of sale or distribution by such person to a consumer (15 U.S.C. § 2052(a)(7), 15 U.S.C. § 2052(a)(13)).

Consequently, everyone who touches a product once it is manufactured in the US or arrives in the US, other than someone doing so for transportation purposes only, is liable for a recall of the product. That liability extends to failing to report a defective product.

3.    A reporting requirement is triggered when:

There is a duty to report a defective product by anyone in the chain of distribution when:

  1. a product fails to comply with a consumer product safety rule or a voluntary consumer product safety standard upon which the CPSC has relied, such as the voluntary standards.
  2. A product fails to comply with the CPSA or another Act, such as the Flammable Fabrics Act.
  3. A product contains a defect that could create a substantial product hazard.
  4. A product creates an unreasonable risk of serious injury or death (15 U.S.C. § 1193-1204, 15 U.S.C. § 2064(b)).

This creates a massive unknown black hole for the outdoor industry. The OR industry creates dozens of products may have a warranty issue, but do not violate any statute and do not create a substantial hazard or create a risk of injury or death to the user.

Examples of these are Avalanche Probes or Avalanche Beacons, and other rescue equipment. No matter what goes wrong with a probe or beacon, it will not cause injury or death to the consumer. The defective probe will not kill or injury anyone unless the searcher just stabs someone. Consequently, this creates a real issue for many.

However, the law says injury to the consumer. If there is no injury, the product may not work, but it is not the cause of the injury and thus not subject to a recall.

The CPSC takes a different view.

Your question has been forwarded to me for a response. We may find a product to be defective if it does not function as intended, and the problem can lead to a hazard. The hazard does not necessarily need to stem from direct contact with the product itself. If its failure to operate as expected can expose anyone to a hazard, then we may potentially find that product to be defective and creating a risk of injury. To use your Avalanche Beacon example, since its purpose is a life safety device intended to assist in the location of someone buried in an avalanche, if it does not function as designed, it could be determined to contain a defect which creates a risk of injury. Such an analysis is contingent on the facts of each particular case.

Blake G. Rose

Director

Defect Investigations Division

Office of Compliance and Field Operations U.S. Consumer Product Safety Commission

I think this can require a lot of interpretations and leaves a real gap for because the explicit language of the law is different. The above statement is the CPSC interpretation of that language. You will need to look at what the problem is and will it lead to injury to a non-user. In many cases, it won’t, it is a warranty issue.

This issue is: How much are you will to risk and push the issue? If not, then recall your product no matter what the issue.

4.    Voluntary Standards

If a product fails to meet standards that are voluntary such as those created by the ASTM, ANSI or such other agency or trade association, then the CPSC has interpreted their regulations to say that product is defective and must be recalled.

At the same time, a product can meet the voluntary standard such as those of the American National Standards Institute (ANSI) (16 C.F.R. § 1115.12(g)) and still need to be recalled because it is defective in a way that is not covered by the voluntary standard.

5.    When do you have to report?

You must report any product that has a “a fault, flaw, or irregularity that causes weakness, failure, or inadequacy in form or function.” (16 C.F.R. § 1115.4) If the product has a defect, then the issue is whether the defect creates a substantial product hazard.

A “substantial product hazard” is:

  1. A failure to comply with an applicable consumer product safety rule, which failure creates a substantial risk of injury to the public,
  2. A product defect which (because of the pattern of defect, the number of defective products distributed in commerce, the severity of the risk, or otherwise) creates a substantial risk of injury to the public (16 C.F.R. § 1115.2(a)).

A “substantial product hazard” exists when a defect creates a “substantial risk of injury.” The focus is on the risk of injury, not on actual injury reports or the severity of injuries (16 C.F.R. § 1115.12(g). Although in my experience, the severity and actual injuries having already occurred ends any discussion by the CPSC.

6.    Unreasonable Risk of Serious Injury or Death

“Serious injuries” are defined by the CPSC as “injuries necessitating hospitalization, which require actual medical or surgical treatment, fractures, lacerations requiring sutures, concussions, injuries to the eye, ear, or internal organs requiring medical treatment, and injuries necessitating absence from school or work of more than one day.’ (16 C. F. R. § 1115.6)

The requirements are not cumulative. Meaning a consumer can suffer serious injury if they receive sutures but don’t go to the hospital or miss work. The threshold has been met by just one issue.

The factors that are used to decide whether a risk of serious injury is “unreasonable” are the utility of the product, the level of exposure to consumers, the nature and severity of the hazard, whether the product is state of the art, the availability of alternative designs, and the feasibility of eliminating the risk without compromising utility (16 C. F. R. § 1115.6(b)).

I also think this clause affects the definition of defect. There is no unreasonable risk of series injury or death to any victim.

7.    Burden is on the Chain of Distribution to watch.

Regardless of which category the report will come under, you must pay attention to product testing results as well as watch for warranty claims, consumer complaints, product liability lawsuits and other quality related complaints for any indication that reportable defects or reportable injuries exist.

8.    When to Report

If a product contains a defect that has the actual or potential risk to cause injury, the CPSC will initiate a recall, generally with the manufacturer’s cooperation and input. However, the CPSC can imitate a recall even if the manufacturer opposes the recall.

9.    Corrective Action Plan (CAP)

A CAP is a document that describes the remedial action that the company is voluntarily undertaking with the CPSC’s approval to protect the public from an allegedly defective product (16 C.F.R. 1115.20(a)). (The threat of a fine does not remove the concept of voluntary from the CPSC nomenclature.)

The CPSC can initiate an enforcement action if it cannot reach agreement with the company on the corrective action plan, or if it becomes aware of additional facts that were not disclosed by the company.

10.    Components of the Corrective Action Plan

The CPSC can create the CAP it believes is necessary to solve the problem. Consequently, no CAP is the same as a prior one, in theory.

The corrective action plan may include:

  1. A description of the alleged hazard, including the alleged defect and any associated potential injuries
  2. Details pertaining to the vehicle and method of public notification such as a
    1. Letter
    2. Press Release
    3. Advertising
  3. Who a notice will be sent to
  4. The model number and description of the product
  5. Instructions for safe handling or use of the product pending the corrective action
  6. An explanation of the cause of the hazard if known
  7. The corrective action being taken to eliminate the hazard such as
    1. Repair
    2. Replacement
    3. Refund
  8. Whether the products are to be returned a plan for their disposition
  9. Steps taken to prevent reoccurrence of the hazard in the future
  10. Action taken to correct products in the distribution chain.
  11. In addition to this information, a corrective action plan
  12. Must be signed by company representatives
  13. Must acknowledge and agree that the CPSC has the power to monitor the action
  14. That the CPSC publicize the terms of the corrective action plan
  15. May contain a statement that the submission of the corrective action plan does not constitute an admission by the company that either reportable information or a substantial product hazard exists.

Some factors that are considered when the CPSC is determining whether to accept the corrective action plan are.

  • The promptness of the company’s reporting
  • Any remedial actions taken
  • And the likelihood that the company will fully comply with the plan based upon any prior corrective actions.

Consequently, maintaining a good relationship with the CPSC pays off. This is not an agency that aggressiveness works in achieving your goals. Employees of the CPSC regularly deal with the largest companies in the world, and threats are a joke.

In that same vein, I work hard to maintain my reputation with the CPSC and want to conform to the three steps identified above.

The CPSC can approve the plan, reject the plan and issue a complaint against the company which begins an administrative or judicial action, or take other action to ensure the plan is adequate, such as suggesting revisions to the plan (16 C.F.R. 1115.20(a)(2)).

11.    Recall Notice

The CPSC views a direct recall notice, or one that is sent directly to specifically identified consumers, as the most effective form of a recall notice. In any recall, at least two of the following forms of notice must be used:

  1. Letters, web site postings, e-mail, text message
  2. Computer, radio or television transmission
  3. Video news release, press release, recall alert or web stream.
  4. Newspaper, magazine, catalog or other publication
  5. Advertisement, newsletter or service bulletin (16 C.F.R. 1115.26).

In most cases, the CPSC will require a combination of notices and requires the manufacturer to monitor and report the effectiveness of the notices.

If a recall notice is posted on a web site, a link to the relevant information must be placed prominently on the home page (16 C.F.R. 1115.26). Because this is the first thing, most consumers will respond to in the eyes of the CPSC, the larger the notice and more prominent the notice the better.

The notice on the home page, and link to information on how to respond to the recall must be left on the page until the CPSC has released the manufacturer from the recall.

12.    Penalties

Penalties that can be levied by the CPSC increased in 2008. A fine of up to $100,000 for a single violation of the CPSA, and up to a maximum of $15 million for a series of violations can be levied by the CPSC (15 U.S.C. § 2069).

This increased in the amount and ability to fine, has changed the approach of many companies in dealing with the CPSC. Before the fine increase, the fines were nominal and a lot of companies would ignore the CPSC and hope they would not be discovered. Now, the fines are so substantial that you ignore the CPSC at your own peril.

13.    Failure to report

A failure to report a defective product or having the report created from the anonymous webpage or 800 number is the easiest way to incur the wrath of the CPSC. A failure to timely respond to the CPSC, and the completeness of the response increases the severity of any penalty for failure to report. The CPSC will also look at:

  • Whether a company had a reasonable safety and compliance program, in effect, at the time of the violation, including a system of collecting and analyzing information relating to safety issues such as incident reports and warranty claims;
  • Whether a company has a history of noncompliance with the CPSC that is deserving of a higher penalty for repeated noncompliance.
  • Whether a company has benefited economically from a delay in complying with the requirements;
  • Whether a company has failed to respond to the CPSC in a timely and complete fashion in response to requests for information or for remedial action (16C.F.R.1l19).

CPSC also examines the severity of the risk of injury, the occurrence or absence of injury, and the number of defective products or the amount of substance distributed.

The CPSC must also consider the nature, circumstances, extent and gravity of the violation, including the nature of the product defect or the substance; the appropriateness of the penalty in relation to the size of the business or of the person charged, including how to mitigate undue adverse economic impacts on small businesses; and other factors as appropriate.

14.    Preparing for a Recall

The best way to prepare for a recall is to read. If at any time you believe you may need to recall a product you should do two things.

  1. Assign someone to be the sole person responsible for dealing with the CPSC and with the recall. This person is going to spend 90% of their time the first two to three weeks dealing with the recall. After the CPSC approves the CAP then the responsible person only needs to track the responses to the recall and report every month.
  2. Read the following:
    1. http://www.cpsc.gov/recallguidance.
    2. If you believe you can benefit from the Fast Track Program: http://www.cpsc.gov/fasttrack
    3. Download and read the CPSC Recall Handbook:
      1. In English: https://www.cpsc.gov/s3fs-public/8002.pdf
      2. In Spanish: https://www.cpsc.gov/s3fs-public/8002.pdf
  3. If you understand and are prepared the CPSC recall is not the nightmare that it has been labeled. It is not an easy and smooth process either. It will also cost the company thousands of dollars in time, fees and expenses apart from the cost of the actual recall.
  4. And you are working with Federal Bureaucrats. A couple of hints:
    1. Make sure you understand their terminology.
    2. Get clear deadlines and dates
    3. Follow up with every report or response you file to make sure it was.
      1. Received
      2. Correct or met the requirements/needs of the CPSC.
    4. Do not be afraid to ask for clarification, help or knowledge until you fully understand what the issue is.
    5. Do not be afraid to point out issues that are not clear, confusing, or you don’t understand or agree with.
    6. Ask your compliance officer after the CAP has been filed and approved what the CPSC expected goal is in response to your recall. That will determine when you can end the recall.

Once I was asking when we no longer had to file monthly reports. The contact I was working with at the CPSC, pulled up the reports and said, wow, you are done. After the reports start rolling in on time and correct, they can get lost in the system or ignored. You will have to stay on top of the reports and the CPSC to make sure they help you succeed and get off the program.

If you don’t ask you will be filing reports for years.

There is no way to plan for a recall. It is much better to plan to make sure you don’t have a recall. Quality control is the most important department in making sure a recall does not happen. If it does, you can quickly get up to speed. Working with your attorney and PR agency (yes, the CPSC wants you to have a PR firm or person) you can get through the first couple of weeks and then concentrate on running the business.

15. Starting a recall can take a month before the CPSC responds, what do I do.

If you want to get the word out because there is a real issue and people’s lives or well-being is at stake, the CPSC recall process is slow. After filing the initial notice, the CPSC will get back to you with questions and requirements for a plan in a couple of days. You will have twenty days to respond. The CPSC can take another week or two to finalize the recall information, notices and press releases.

That can be too long in our industry.

Nothing in the regulations says you cannot notify people of the recall on your own. The CPSC will tell you that you may have to do it again, if they do not like the way, you did it, the press release or notices you used, etc. You will do it again because the CPSC will want it done again. However, that is a small price to pay if you save one of your user’s life or limb.

Get the world to your retailers, distribution change, major media outlets and social media immediately. Whatever users you have contact information for contact them immediately. Do the same for user groups, associations and any professionals using your equipment.

Include what you do in any communication with the CPSC. You can upload these documents when you file the report, or as you send them out. The CPSC is going to respond that you did it wrong. However, I have to believe that if they understand your issues, the risk, and your efforts, they must believe and appreciate what you did, in an attempt to save lives.

The CPSC is a federal regulatory body, and no matter the urgency is going to respond, their way and only their way. You must follow their rules. However, nothing prevents you from jumping the gun and notifying people any way you can to save people.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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The legal relationship created between manufactures and US consumers

An Overview of the legal relationship created between manufactures and US consumers.

This is a quick memo to simply outline the legal issues encountered by foreign corporations selling in the US Market. This memo will touch on the following issues:

Agency

An agent legally represents the manufacture. From a legal standpoint the agent stands in the shoes of the manufacture. An agent speaks and acts for the principal, the manufacture. As such the manufacture is liable for anything the agent says or does while representing the manufacture until the agency is terminated and that termination is communicated to interested third party consumers.

An agency relationship exists when a principal (in this case the manufacture or distributor) creates a legal relationship with a third party for the third party to represent the principal. In this case the third party is a retailer of products or an independent contractor sales representative. This relationship can be by contract (oral or written) or by actions on the part of either party (I’ll pay you if you do that).

An agency can be created without a legal relationship. Agency by Estoppel is created when third parties or consumers believe that one party has vested rights or an agency in another based on the actions of the principal. If a sales rep says he works for a manufacture and the manufacture does nothing to terminate the relationship or refine the relationship in the minds of the consumer or the shop then the agency does in fact exist. The parameters of the relationship are as defined by the consumer as reasonably interpreted from the actions of the agent. Failure to stop or disclaim the agency confirms the agency.

This places a tremendous burden on manufactures to create a relationship with agents that is within the parameters and/or restrictions the manufacture wants and then to insist the agent work within those parameters. However, if the manufacture does nothing to enforce the parameters or knows the agent is working outside of the parameters the manufacture will be held liable for the acts of the agent.

A good contract outlining the relationship is necessary for most independent contractor’s representative and required by seventeen (17) states.

Agency by law is another type of agency that is created. These are actions that the courts have interpreted over time to be agency relationships. A specific example in this case is again the manufacture and the distributor or the manufacture and the rep. Courts have determined that for the distributor or rep to do their jobs there is an agency relationship for the agent to act for the manufacture. Agency by law then is interpreted to mean the agent has the basic responsibility to act on behalf of the manufacture.

This places a burden on manufactures to do two things. (1) Hire agents who will understand and respect the agency relationship as defined by the manufacture. That then requires a well written contract that gives the agent freedom to do their job and at the same time reserves the rights and powers that the manufacture wishes to retain. (2) To act quickly when the manufacture sees someone acting outside of the defined relationship or a third party who is acting like an agent.

These place tremendous burdens on the manufacture. However the burdens were created to prevent the consumer, who has little or no way of checking on the relationship from getting ripped off.

Specifically a sales rep is the same as a bike shop, both are selling for the manufacture and the public can rely on both in the same way.

Warranties

A warranty is created every time there is a sale. Most warranties in the US are defined in the Uniform Commercial Code (UCC) and in a few cases state and federal laws. Specific Federal laws may affect the sale of certain items such as the Magnuson-Moss Warranty Act which covers warranties on automobiles.

In every sale the UCC states that there is a Warranty of Fitness and a Warranty for a Particular Purpose (UCC – ARTICLE 2 -§2-314 & 315).

§ 2-314. Implied Warranty: Merchantability; Usage of Trade.

(1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

(2) Goods to be merchantable must be at least such as

(a) pass without objection in the trade under the contract description; and

(b) in the case of fungible goods, are of fair average quality within the description; and

(c) are fit for the ordinary purposes for which such goods are used; and

(d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and

(e) are adequately contained, packaged, and labeled as the agreement may require; and

(f) conform to the promise or affirmations of fact made on the container or label if any.

§ 2-315. Implied Warranty: Fitness for Particular Purpose.

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.

As innocent as these warranties appear, they are the basis for product liability lawsuits and can be used to void more limiting warranties. However both of these warranties can be voided.

An example of the problem would be a camming device. The salesman states the camming device will work “no matter what.” The user drags the device through the mud so it is just caked and won’t work properly. The consumer uses the device, it fails because of the mud and the consumer is injured. The consumer could sue for their injuries under a breach of warranty theory because the device did not live up to the reason why it was purchased. This is a breach of the fitness for a particular purpose warranty.

Another example of the problem would be selling a bicycle. The salesman states the bicycle will be easy to ride. The new owner has never used a derailleur shifted gears on a bicycle and constantly has trouble shifting the gears. During one attempt to change gears the consumer hits a sewer grate suffering serious injuries. The consumer could sue for their injuries under a breach of warranty theory because the device did not live up to the reason why it was purchased. This is a breach of the fitness for a particular purpose warranty.

There is an out in the law that allows a manufacture to argue that the statements were salesman’s “puffing.” That means the statements that a salesman makes to sell a product that may be over the top. However because the warranty was not properly disclaimed the salesman’s puffing is not a valid defense. This may be in addition to any claim for basic product liability issues.

State Consumer Protection Laws

Each state has enacted a serious of Consumer Protection Laws. These laws are designed to “level the playing field” between consumers and large manufactures. Although the specifics may vary for each state in general the laws lower the threshold needed to prove a case against the manufacture and increase the damages for the consumer. In some cases damages are trebled, with interest costs and attorney fees being added to the damages.

Another disadvantage for manufactures is the manufacture can be forced to defend the action in the consumer’s state if products are sold in that state.

Colorado’s Consumer Protection Act, C.R.S. §§ 6-1-105 et seq has the following sections that would be of interest.

(1) A person engages in a deceptive trade practice when, in the course of such person’s business, vocation, or occupation, such person:

(d) Uses deceptive representations or designations of geographic origin in connection with goods or services;

(r) Advertises or otherwise represents that goods or services are guaranteed without clearly and conspicuously disclosing the nature and extent of the guarantee, any material conditions or limitations in the guarantee which are imposed by the guarantor, the manner in which the guarantor will perform, and the identity of such guarantor. Any representation that goods or services are “guaranteed for life” or have a “lifetime guarantee” shall contain, in addition to the other requirements of this paragraph (r), a conspicuous disclosure of the meaning of “life” or “lifetime” as used in such representation (whether that of the purchaser, the goods or services, or otherwise). Guarantees shall not be used which under normal conditions could not be practically fulfilled or which are for such a period of time or are otherwise of such a nature as to have the capacity and tendency of misleading purchasers or prospective purchasers into believing that the goods or services so guaranteed have a greater degree of serviceability, durability, or performance capability in actual use than is true in fact. The provisions of this paragraph (r) apply not only to guarantees but also to warranties, to disclaimer of warranties, to purported guarantees and warranties, and to any promise or representation in the nature of a guarantee or warranty; however, such provisions do not apply to any reference to a guarantee in a slogan or advertisement so long as there is no guarantee or warranty of specific merchandise or other property.

(3) The deceptive trade practices listed in this section are in addition to and do not limit the types of unfair trade practices actionable at common law or under other statutes of this state.

Colorado’s statute allows the judge to award treble damages, interest and attorney fees if the consumer is successful in the suit. C.R.S. 6-1-113. §§ Damages

Here again the warranties come into play. If the consumer can prove the warranties are not disclaimed and the claim falls within the deceptive trade practices act or a common claim for deceptive trade practices, the damages for the warranty claim are increased.

European Union certifications & the US

Many manufactures from Europe or Asia believe that meeting standards for manufacturing products in Europe is all that is needed to sell in the US. That is correct. However those standards provide no defense in a US Court against product liability claims.

Product liability lawsuits are lawsuits against the manufacture and all entities in the chain of the sale. A product liability action can be brought against the bicycle shop, the distributor and the manufacture of a product. There are three basic product liability claims.

  • Defective manufacture
  • Defective Design
  • Failure to warn

Defective manufacture claims are usually brought when only one product fails because there was a flaw in the manufacturing process for that product. The flaw caused an injury to the consumer using the product.

Defective design is usually the claim made when all of a type of product fails causing injury. A defective design claim can be brought at any time during the useful life of a product. This claim is brought when all of the products of a design fail for the same reason. The design flaw can either be based on the product breaking causing injury or the design preventing the product from working as advertised or as used by consumers.

The most difficult claim to defend is a failure to warn. This claim has two parts. Failure to warn at the time of the purchase and failure to warn of new issues the manufacture learns about. Failure to warn claims are the basics for information and warning labels that are not written in a manner to adequately inform the consumer of the risks of using the product.

Failure to warn claims that arise after time are usually a result of several Defective manufacture claims. Once a manufacture knows of problems in the way a product is being used OR that a product is being used incorrectly, the manufacture MUST warn all users of the problem. This type of claim in practice is similar to a product recall. However a product recall is done before an injury occurs. A failure to warn claim is the lawsuit brought after a recall.

The running of a warranty period does not end product liability claims.

Jurisdiction and Venue

Foreign manufacture believe that by setting up a US distributor, any lawsuit can only be brought against the US distributor and not the parent company in Europe. That is not true. US law allows a lawsuit against the end manufacture, wherever that manufacture is located if the manufacture entered the product in the stream of commerce in the state where the injury occurred or where the consumer lives. Proof of entering into the stream of commerce is a combination of factors: employees or agents living or working in the state; advertising in the state; contracting with retailers to sell the product in the state; advertising at events in the state are a few examples used to prove the manufacture entered the stream of commerce in a particular state.

In some cases, a manufacture can limit suits to just a few states with proper venue and jurisdiction clauses in their information to the consumer; however this is not always successful and will not work in all states. Either way, a foreign manufacture will be brought into the US to defend a product liability claim.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

© 2010 James H. Moss

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