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Sernac approves Interpretative Bulletin on the manner in which suppliers must comply with the obligation to inform the duration of the goods.
On September 5, 2022, the National Consumer Service issued Exempt Resolution No. 0773 of 2022, which approves the Interpretative Bulletin on the manner in which suppliers must comply with the obligation to inform the duration of the goods, as well as the period in which spare parts and technical service will be available.
In the context of the enactment of Law No. 21.398 (Pro Consumer Law), which introduced, among other things, a new section in the final part of the third paragraph of Article 1° N°3 of Law No. 19. 496 on Consumer Rights Protection (LPDC), which states that “in the case of sale of durable goods, the duration of the good in foreseeable conditions of use, including the term in which the supplier is obliged to provide spare parts and technical service for its repair, shall also be considered as basic commercial information”, this Bulletin is approved, which determines the scope of this amendment.
In accordance with this, the document clarifies the following points in this matter:
I. Basic Commercial Information (IBC).
In this regard, it determines that, according to Article 1° N° 3 of the LPDC, the IBC consists of “the data, instructions, background or indications that the supplier must compulsorily supply to the consumer public, in compliance with a legal rule”, giving, the same rule, examples of cases that correspond to IBC.
At the same time, they provide that, with respect to the instructions for use of goods and services which normal use represents a risk to the integrity and safety of persons, their delivery to the consumer together with the goods and services to which they have access will be mandatory.
In addition, the fourth paragraph of article 58 of the LPDC establishes that suppliers shall be obliged to provide the National Consumer Service with the background information and documentation requested in writing and related to the basic commercial information of the goods and services offered to the public.
II. Duty to inform the duration of the goods in foreseeable conditions of use.
This point initially establishes that a durable good shall be understood as a non-consumable good that allows repeated or continued use for a long period of time and that, under foreseeable conditions of use, retains its usefulness, functionality and performance, without prejudice to the wear and tear or deterioration that may occur due to its use.
In order to determine the foreseeable life of the good, suppliers must base themselves on objective, reliable, verifiable and suitable background and methods for this purpose. For this purpose, they should take into account the specific characteristics of the good in question, and the milestone that will determine the beginning of the term should be made explicit.
It is noted that, when determining the durability period, and then communicating it to consumers, suppliers are obliged to comply with the duty of professionalism, using with expertise, good faith, seriousness, honesty and efficiency the available information regarding the characteristics of the product and the use given to it by consumers, refraining from engaging in practices that violate the rights of consumers, such as “planned obsolescence”.
Regarding what is understood by “foreseeable conditions of use”, it is provided that they correspond to the use that will be given to the product sold, according to what can normally be anticipated or foreseen, and must be explicitly informed by the supplier to the consumer when providing the IBC on durability, in Spanish language and in understandable and legible terms, in addition to measures applicable in the country.
III. Duty to inform the time period in which the supplier is obliged to provide spare parts and technical service.
The incorporated standard also established as IBC the term during which suppliers are obliged to provide spare parts and technical service. A minimum term was not explicitly established, but from a harmonic interpretation of the LPDC, it is clear that such term cannot be less than 6 months, from the date of receipt of the product, due to the consumer’s right to exercise the legal warranty, which requires, in certain cases, the existence of spare parts and technical service.
The IBC on the availability of spare parts requires that, during the period informed by the suppliers, they are obliged to have available all parts that can be replaced, and which replacement may be necessary for the use of the good in the conditions also informed, unless the existence of differentiated periods are adequately and timely informed according to the type of spare part, which must be specified in detail.
It was also established that, during the committed term, suppliers must have spare parts available that are adequate to replace parts, pieces or inputs of the marketed product, and must necessarily have new stock, in case the consumer is not willing to contract refurbished spare parts. Regarding the price of these, the public must be informed of their costs, with the exception of those spare parts that due to their characteristics must be regulated conventionally, in which case the supplier must inform referential parameters that may help the consumer to determine the final price.
The aforementioned information must be provided before formalizing or perfecting the act of consumption, in a clearly visible manner. In addition, it must keep a list of its prices available to the public and a list of the spare parts it will have available during the time determined when supplying the IBC, together with the way in which consumers may access them when they require them.
On the other hand, the IBC on availability of technical service, understood as suppliers that provide both repair and maintenance of goods, provides that the supplier must only inform the period in which it is obliged to provide technical service for repair, being obliged to provide such service during that time. In addition, they must provide a list identifying the technical service providers and must constantly monitor the validity of this list.
It is also interpreted that, in the event that the technical service is provided by third parties, the supplier must take the necessary precautions to ensure that they comply with the conditions to provide an adequate and safe service, provided that it is a service authorized by the supplier.
IV. Form of Complience.
The obligations set forth in this Circular apply to all suppliers that comply with the requirements set forth in numeral 2 of Article 1° of the LPDC, and in the event of a possible breach of the rule, the parties entitled to take action against them (affected consumer, Consumer Associations and SERNAC).
The moment in which the information must be provided is prior to the contracting, since they are considered objective conditions that are understood to be incorporated in the contract between consumer and supplier, and must be consigned in a way that allows its visualization prior to the contracting, together with the rest of the relevant characteristics of the good.
In addition, in the event that the product is marketed on e-commerce platforms, information must be provided that clearly and completely describes the essential characteristics and features of the products or services offered, in accordance with their nature and purpose, in addition to any other relevant information.
Regarding the conditions that the information must meet, it must comply with the provisions of articles 1° N°3 and 32 of the LPDC, i.e., through a clear, expeditious and timely access, and in Spanish language, in understandable and legible terms, in addition to measures applicable in the country.
In addition to this, it is added that the information must be truthful and verifiable, taking the necessary precautions so that it is delivered to the consumer in a clear and unequivocal manner. And it is emphasized that if such information is used as advertising content, they must comply with the rules and principles governing advertising activity, which is included in the Interpretative Circular on advertising and commercial practices approved by SERNAC through Res. Ex. No. 176 of 2022.
The information provided in accordance with this regulation is part of the terms and conditions to which the consumer gives its consent, so that once provided, it obliges the supplier to strict compliance, so that in case of non-compliance, it constitutes an infringement of Article 12 of the LPDC and other provisions, with a fine of up to 300 monthly tax units. False or misleading advertising may also be involved.
V. Warranty regimes and their relationship with the IBC on durability, spare parts and technical service.
In this point a comparative table is made in order not to confuse the delivery of IBC with the other warranty regimes that consumers have, such as the legal warranty regime of the LPDC or the voluntary warranties granted by suppliers.
Obligation to inform the foreseeable duration of durable goods and the term in which the supplier is obliged to provide spare parts and technical service for their repair comes into force
On December 24, 2021, Law No. 21.398 was published in the Official Gazette, which establishes a series of measures to raise the standard of protection of consumer rights or the so-called “Pro-Consumer Law“.
At the end of August 2022, a new obligation for suppliers came into force, incorporated in Article 1, number 3 of Law No. 19.496, which establishes rules on the protection of consumer rights, and which refers to basic commercial information.
In this regard, the law provides that “In the case of sale of durable goods, basic commercial information shall also be considered the duration of the good in foreseeable conditions of use, including the period in which the supplier is obliged to have spare parts and technical service for its repair”.
Therefore, from the end of August 2022, suppliers of durable goods must inform about the foreseeable duration of durable goods and the term in which they are obliged to provide spare parts and technical service for their repair.
This obligation applies to both e-commerce and face-to-face suppliers. Therefore, the recommendation is that suppliers incorporate this requirement into the information they provide to consumers regarding the sale of durable goods.
Law No. 21.398, which establishes measures to encourage the protection of consumer rights, is published.
On December 24, 2021, Law No. 21.398 was published in the Official Gazette, which establishes a series of measures to raise the standard of protection of consumer rights or the so-called “Pro-Consumer Law”.
This law amends, among other regulatory bodies, Law No. 19.496, which establishes rules for the protection of consumers’ rights (or “LPC”), Law No. 18.010, which establishes rules for credit operations and other money obligations, and the Law on Sales and Services Tax, contained in Decree Law No. 825 of 1974.
The main amendments introduced by this law refer to matters that involve all adhesion contracts and, especially, e-commerce, obliging the industry to adjust its contractual terms, as well as the terms and conditions that have been implemented in e-commerce. In this regard, the most relevant changes in this regard are the following:
1. General recognition of the pro-consumer principle, which will be fully applied in the interpretation of adhesion contracts, both in ambiguous and contradictory clauses.
2. New consumer rights, with the possibility for the consumer to go directly to court and expressly recognizing as consumer rights those contained in different bodies of law.
3. The duration of the legal guarantee of the products is modified, extending it from 3 to 6 months, and entering into force on March 25, 2022.
4. Modifications to consumer protection in adhesion contracts, prohibiting abusive clauses in them, establishing obligations to adapt contracts to make them accessible to people with disabilities and establishing the obligation of suppliers to inform consumers about the mechanisms and conditions to terminate such contracts.
5. Extension of the right of withdrawal to commerce carried out by electronic or distance means, which may be exercised within 10 days from the acquisition or physical delivery of the product.
6. Modifications referred to basic commercial information of durable products and regarding costs and times in dispatch services.
7. New measures for the protection of consumers’ personal data are established, granting supervisory powers to SERNAC in data protection matters and establishing the exercise of collective actions by SERNAC in these matters, limited to a consumer relationship, and provided that the powers do not conflict with the legal powers of other bodies.
Notwithstanding the aforementioned amendments, this Law makes relevant changes in financial, aeronautical, education certificate and transportation matters.
Given the above, and in view of this and other regulatory changes that regulate the consumer relationship, the recommendation is that suppliers review and adjust their contracts of adhesion, as well as their terms and conditions and privacy policies to the regulations applicable to each of their businesses.
Law No. 21.320 amends the Law on the Protection of Consumers’ Rights in matters of extrajudicial collection and provides for transitory measures by COVID-19.
On April 20, 2021, Law No. 21.320 was published in the Official Gazette, which amends Law No. 19.496, on Protection of Consumer Rights (LPDC), regarding extrajudicial collection and other consumer rights, along with establishing transitory measures, in connection with the COVID-19 pandemic.
The most important amendments made by this law correspond to the following:
1. The companies that carry out extrajudicial collection, as well as the credit providers that carry out collection processes, when initiating any action aimed at obtaining the payment of the debt, must inform the means of contact or means of contact so that the consumer can communicate, with respect to the extrajudicial collection actions.
2. It adds a series of principles that must be applied to out-of-court collection actions, regardless of their nature, means of communication or time at which they are carried out, namely: (a) proportionality, (b) reasonableness, (c) justification, (d) transparency, (e) truthfulness, (f) respect for the dignity and physical and psychological integrity of the consumer and (g) privacy of the household.
3. In view of the above, telephone contacts, visits and other actions aimed at extrajudicial collection are limited, and the sending of documents, messages or communications that appear to be or make reference to a writing, resolution or judicial action of any kind is prohibited.
4. Likewise, the supplier shall immediately terminate the extrajudicial collection actions once the consumer has been summoned in a collection lawsuit or a bankruptcy proceeding has been initiated, and the competent court is empowered to order the immediate suspension of the extrajudicial collection actions, when the facts and background information provided so require.
5. Certain provisions of the LPDC, such as default interest rates and the system for calculating the expenses generated by extrajudicial collection, shall also be applicable to money lending transactions in which the entities supervised by the CMF are involved.
6. The range of application of Paragraph 3°, on consumer credit, is extended to all suppliers and to all consumer transactions governed by the LPDC, even when they do not involve the granting of credit to the consumer.
7. Finally, in view of the current health circumstances and restrictions, it is provided that, during the state of constitutional exception of catastrophe due to public calamity, due to the COVID-19 pandemic, out-of-court collection calls or visits may be made only twice a month, with respect to each debtor.
SERNAC provides guidelines for the approval of compliance plans of suppliers, in the context of an administrative or judicial procedure.
On December 9, 2020, the National Consumer Service (“SERNAC”) issued Exempt Resolution No. 813, which contains the Interpretative Circular on Procedure for Approval of Plans to Comply with Article 24, paragraph 4(c) of Law No. 19.496, which establishes rules on the Protection of Consumer Rights.
In effect, the aforementioned article establishes that substantial collaboration by the supplier to SERNAC will be considered an extenuating circumstance in the context of the application of sanctions, it being understood that such collaboration exists if the supplier has a specific compliance plan referred to the matters subject to the infringement, which has been previously approved by SERNAC and which proves its effective implementation.
Under this budget, the Circular details the steps to be followed by suppliers to access the approval of the compliance plans implemented, in particular, establishing: i) the requirements for the approval of a compliance plan, ii) the existing approval procedures, iii) the validity of the plan, iv) the publicity of the approvals, and iv) the treatment of the information provided by suppliers, during the approval procedure.
Among the main points to be highlighted is the possibility for the supplier to process its application, through an abbreviated procedure, by attaching to its request a certificate issued by an appropriate certifying entity, i.e., one previously verified and registered by SERNAC, by which it is accredited that the compliance plan is implemented in accordance with Law No. 19.496 and other applicable legal and administrative regulations.
However, in the event that the referred certification has not been obtained, the supplier may also submit its compliance request to the general procedure, in which case SERNAC will hire a third party to prepare a technical report that will allow the analysis of the plan.
In case you require additional information on this matter, you may contact Rocio Vergara (firstname.lastname@example.org) and/or Andrea Abascal (email@example.com).