Chapter 15 Flashcards
What legal theory governed consumer law from the early 18th Century until the early 20th Century?
Caveat emptor “let the buyer beware”
Is false advertising protected by the First Amendment?
No bitch
What is the common law remedy for fraudulent advertising? What are the five elements of this remedy?
- a material misrepresentation
- of a presently existing fact
- intentionally/negligently made
- justifiably relied on
- to the plaintiff’s detriment
What can “sales puffery” not reasonably be considered and is it grounds for a claim of false advertising?
Cannot be considered statements of fact and are not grounds for a claim of false advertising
What Federal law (Act) makes illegal unfair competition and unfair or deceptive practices?
Section 5 of the Federal Trade Commission Act
What Commission does the Federal Trade Commission Act create? Be able to recognize the initials FTC.
Fed Trade Comm.
Commission trade regulation rules, quasi-judicial rulings, advisory opinion, and agency guidelines
What must a practice have in order to be illegal under the FTC Act?
The capacity or tendency to deceive – there doesn’t need to be proof
What is the “fool’s standard” and what replaced it in 1983?
“not made for the protection of experts, but for the public .. including the ignorant, the unthinking and the credulous”
Be able to recognize and list six different examples of illegal advertising that have been held to be unfair or deceptive.
- Bait-and-switch tactics
- Low balling tactics
- Misleading price and savings claims
- Untrue or misleading product test reports, claims or comparisons
- Endorsements b one misrepresented expressly or impliedly to be a “doctor” or “scientific expert”
- misleading television or pictorial advertising
Be able to recognize and list five different types of FTC remedies.
Consent decree Dease and desist order Fines Damages for persons injured Corrective advertising
What are the Food and Drug Administration’s activities directed toward? Be able to recognize the initials FDA.
Protecting consumers from injury and fraud in the formulation, packaging and advertisement of foods, drugs, cosmetics and therapeutic devices.
What Act created the FDA and what year was it created?
Food and Drug Act in 1906
What does the Equal Credit Opportunity Act forbid?
Discrimination in the granting of credit based on race, sex, marital status, age, national origin, or status of receiving public assistance
What are the three bases of liability for consumer products?
Breach of warranty, negligence, and strict liability
What is a warranty, who usually makes (offers) it and who is it accepted by?
A warranty is a contract, usually made by the manufacturer and accepted by the purchaser
What Code governs contracts for the sale of goods? what two types of warranties important to product liability does it recognize?
The uniform commercial code (article 2)
Express and implied warranties
How is an express warranty created under the uniform commercial Code?
by any affirmation of fact or promise made by the seller to the buyer white relates to the goods and becomes part of the basis of the bargain
Be able to identify and describe the two major implied warranties under the uniform commercial Code.
Implied warranty of merchantability: when a marchant makes a sale, a warranty of merchantability is automatically create
Implied warranty of fitness for a particular purpose: if the seller knows of the particular purpose for which the buyer is purchasing the goods and the buyer is relying on the sellers skilland judgement
Describe how privity affects product warranties.
Privity: private or face-to-face relationship
If there is no privity there is no contract made
Be able to identify four different limitations on warranties.
- there needs to be a sale
- a person must give notice of the injury within a reasonable time
- the seller can make disclaimers
- there is a four year statute of limitations under the code, dating from delivery of product
What is the statute of limitations for warranties under the uniform commercial Code and when is it dated from?
Its 4 years, and its dated from delivery of the product
What is the second basis for product liability?
Negligence
what is the significant limitation on the application of negligence in product liability cases? (besides Duty of Care for Child Products)
there is a requirement to show that the manufacturer breached a duty of care (failing that proof means plaintiff looses)
What defenses may a defendant raise in negligence-based product liability suits?
The same defenses as in negligence cases
