Table of Contents

The Business of Public Health? Health Sector Participation in Food Industry Self-Regulation - The Food Pyramid Meets the Regulatory Pyramid: Responsive Regulation of Food Advertising to Children

Belinda Reeve, University of Sydney - Faculty of Law

Crowdsourcing Privacy Policy Interpretation

Thomas B. Norton, Fordham University - Fordham Center on Law and Information Policy (CLIP)

'Please Note: You Have Waived Everything:' Can Notice Redeem Online Contracts?

Cheryl B. Preston, Brigham Young University - J. Reuben Clark Law School

Vertical Restraints and the Forgotten Function of Prices in Brand Management

Roman Inderst, University of Frankfurt, Imperial College London
Frank P. Maier-Rigaud, IESEG School of Management (LEM-CNRS), Department of Economics and Quantitative Methods, NERA Economic Consulting

Consumer Law Enforcement – A Law and Economics Appraisal of the German Case

Franziska Weber, University of Hamburg - Institute of Law and Economics


CONSUMER LAW eJOURNAL

"The Business of Public Health? Health Sector Participation in Food Industry Self-Regulation - The Food Pyramid Meets the Regulatory Pyramid: Responsive Regulation of Food Advertising to Children" Free Download
Sydney Law School Research Paper No. 15/42

BELINDA REEVE, University of Sydney - Faculty of Law
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This chapter forms part of a thesis submitted in fulfilment of the requirements of a PhD from the Faculty of Law, University of Sydney.

This chapter explores the possibility of enhancing stakeholder participation in food industry self-regulation as a way of strengthening the public’s interest in the program. I use the alcohol industry’s ABAC Scheme as an example of what a more collaborative approach might look like in practice, as it includes both public health and government representation in its governance processes. The chapter draws upon data from interviews with representatives of nine public health advocacy organisations and research institutes and two interviews with academic researchers. I also present findings from interviews with two representatives of alcohol trade associations, one member of the ABAC Management Committee, two members of the ABAC Adjudication Panel and a representative of the Advertising Standards Bureau. The chapter begins by discussing the increasing use of collaborative initiatives in public health. Next I explore the extent to which public health advocates influence food and alcohol industry self-regulation, both indirectly and by participating in self-regulatory processes. Then I report on whether public health interviewees thought it would be appropriate for public health stakeholders to join non-statutory, quasi-regulatory processes governing food advertising, similar to the ABAC Scheme. I conclude by arguing against external stakeholder participation in industry-based schemes, at least in the absence of government intervention and oversight, because of the significant risk that public health interests will be subverted by those of industry.

"Crowdsourcing Privacy Policy Interpretation" Free Download

THOMAS B. NORTON, Fordham University - Fordham Center on Law and Information Policy (CLIP)
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Contract disputes frequently call on courts to resolve conflicts arising out of interpretative differences. In these disputes, the party at the bad end of a deal typically contends that the parties meant their contract to have a meaning other than the one that led to the unfavorable result. To this end, the complaining party argues that particular terms are ambiguous, and that the ambiguity should be resolved in a way that yields a more favorable outcome. Whether a contract’s terms are ambiguous is a determination for the court to make.

But a battle wages over the appropriate method for making this determination. While some courts confine their analysis to the contract’s four corners (that is, a term will be deemed ambiguous if its meaning cannot be gleaned from the document itself), others consider evidence extrinsic to the document to determine whether terms are reasonably susceptible to more than one meaning. Under either approach, if the court determines that terms are ambiguous, it will resolve ambiguity according to an objective reasonable person standard. But subjective elements influence decision makers in even the most earnest endeavors to decide objectively.

In this Note, I propose the novel concept that crowdsourcing can aid courts both in determining whether contract ambiguity exists and in resolving ambiguities objectively. Courts that accept extrinsic evidence as part of their ambiguity analysis could look to how the crowd interprets the agreement: if crowd workers cannot agree on a particular term’s meaning, the court may accept this as evidence that the term is ambiguous. Similarly, crowd agreement on a particular term’s meaning can supply the court with a reasonably objective interpretation of that term.

In the Note, I explore this concept through the lens of empirical data from a recent study, Disagreeable Privacy Policies: Mismatches between Meaning and Users’ Understanding. That study asked crowd workers to interpret certain website privacy policies and compared the crowd’s interpretations to privacy policy experts’ interpretations of the same policies. This paper relies on data from that study to exemplify how the concept might apply.

To reach this analysis, I first survey the general online contracting landscape. Because the note relies on data derived from analysis of website privacy policies, I specifically examine the extent to which privacy policies can be enforced as legally binding contracts. A finding that privacy policies are rarely enforced as such highlights a flaw in the notice and choice privacy regime that calls its legitimacy into question. I note that even if the crowdsourcing concept would not be adopted by courts, either the concept itself or theoretical questions is raises might prove useful for other adjudicators.

"'Please Note: You Have Waived Everything:' Can Notice Redeem Online Contracts?" Free Download
American University Law Review, Vol. 65, p. 535, 2015

CHERYL B. PRESTON, Brigham Young University - J. Reuben Clark Law School
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Online consumers are largely unaware of the extent to which their actions are governed by legal terms in the form of clickwraps or browsewraps. These contracts are enforced without any evidence of knowing assent to the terms, but only if the consumer has some notice that a contract exists. The standards for notice are low and consumers routinely click and browse without forming a single thought relative to the legal obligations that arise with online conduct – legal obligations that frequently would not arise with procuring the same goods and services in the real world. Commentators have been hopelessly scrambling to propose various schemes for bringing home to consumers the fact that they are entering enforceable contracts.

This article debunks the idea that notice of the existence of a contract should be the measure of enforceability. The concept of notice relies on the purely fictional notion that a reasonable consumer with notice of legal provisions will stop, read them, understand the terminology, appreciate their legal significance, and decide to proceed or not. The relish for notice is irreconcilable with our knowledge that consumers do not, and cannot, read and comprehend even a fraction of the wrap contracts they encounter. Moreover, the law punishes those few who read because any hope for persuading a court to undertake an unconscionability analysis of a contract is lost to parties who admit to having read the contract. Thus, the law does not offer consumers a reasonable option for making better decisions about legal commitments online. Wrap contracts are merely the means for the powerful drafters to legislate legal results.

This Article contains a review of cases addressing clickwraps and browsewraps in the last decade, which amply illustrates that courts are enforcing them without much, if any, discussion of the length, print, density, or sophistication of the language or the parties, in part, because no one expects consumers to read them. This article then reviews the duty to read rule, and its meager exceptions, as well as the status of the unconscionability doctrine. This analysis supports little hope that courts will begin to police wrap contract excesses. This Article then evaluates various proposals for addressing the problem of wrap contracts and concludes that, while most proposals are some improvement, none hold any significant promise for real change. Finally, this Article concludes with several proposals for reform, including an example of the kind of notice that would be required to give meaning to the theoretical concept that the market will adjust as actors make informed choices.

"Vertical Restraints and the Forgotten Function of Prices in Brand Management" Free Download
CPI Antitrust Chronicle, May 2015 (1)

ROMAN INDERST, University of Frankfurt, Imperial College London
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FRANK P. MAIER-RIGAUD, IESEG School of Management (LEM-CNRS), Department of Economics and Quantitative Methods, NERA Economic Consulting
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In this article the forgotten role of prices in the analysis of vertical effects is described. While at least some vertical restraints have the potential to entail anticompetitive harm, it is demonstrated that competition law may be overshooting the mark if no account is taken of both, the rather fundamental use of price as a signal of quality and of the important function prices play for manufacturers in their overall “marketing mix? decisions. The article reviews the theoretical and empirical literature demonstrating a well-established link between price and quality. More generally, price is recognized by both practitioners and marketing scholars as a key part of a product’s brand image and, as such, as a key “cue? for consumers. It is thus far more than a simple transfer between consumers and firms, implying that a lower price is not always beneficial for efficiency and consumer welfare. As a result there is a risk of curtailing the possibilities available to brand manufacturers to successfully develop a high quality brand and experiment with different distribution approaches in a changing market place.

"Consumer Law Enforcement – A Law and Economics Appraisal of the German Case" Free Download
Hamburg Law Review II/2015

FRANZISKA WEBER, University of Hamburg - Institute of Law and Economics
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Consumer law enforcement is high on the European legislator’s agenda. The German consumer law enforcement landscape is not unaffected by these European developments. Traditionally, law enforcement in Germany has primarily been carried out by way of civil litigation relying on active consumer associations. The European legislator places some emphasis on public law enforcement. This contribution assesses the German consumer law enforcement landscape in the light of the European legislation and from a law and economics perspective. One crucial aspect concerns the question of whether some public law enforcement of consumer law is necessary to provide a credible enforcement response regarding rogue traders.

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This eJournal distributes working and accepted paper abstracts of articles, recently published articles, books, legislative reports, conferences, and other publications that address issues of interest to consumer law scholars and practitioners. Coverage includes legal issues pertaining to advertising, consumer reporting (including credit repair organizations), discrimination (including redlining), consumer disclosure (such as the Truth in Lending Act, the Real Estate Settlement Procedures Act, and consumer leasing), consumer fraud (including issues arising under the Federal Trade Commission Act, state UDAP statutes, odometer laws, referral sales, and bait and switch statutes), unconscionability, standard form contracts, consumer privacy (including telemarketing, spam, spyware, phishing, direct mail, financial privacy, common law privacy torts in consumer transactions, and online privacy), identity theft, data protection, cooling off rules (including door to door sales regulation), payment systems (such as credit and debit cards, internet payment issues, stored value cards (including gift cards and phone cards), and electronic transfers), warranties (including UCC warranties, lemon laws, and the Magnuson-Moss Warranty Act), consumer product safety, commercial speech doctrine, debt collection, repossession, predatory lending (including asset-based lending, equity stripping, flipping, balloon payments, negative amortization, loan packing, rate-risk disparities and yield-spread premiums), payday lending, usury, credit insurance, electronic shopping (including electronic signatures and records, formation of contracts, and payments), the holder in due course regulation, mortgages, student loans, repossession, foreclosure, regulation that pertains to consumer markets and enforcement of consumer laws (including class actions, preemption, arbitration, administrative enforcement, small claims courts and attorney's fees). The eJournal does not cover landlord-tenant issues or criminal law. The eJournal welcomes a broad range of methodological approaches, including conventional doctrinal analyses, law and economics approaches, historical discussions, socio-legal analyses, law and society approaches, discussions of consumer psychology that bear on legal issues, international law analyses and comparative law approaches.

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Consumer Law eJournal

RICHARD M. ALDERMAN
Associate Dean, Director - Consumer Law Center, Dwight Olds Chair in Law, University of Houston Law Center

JEAN BRAUCHER
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