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.