Consumer Rights and Assistive Technology

Anthony Rodriguez
Staff Attorney
National Consumer Law Center, Inc.

Introduction

• National Consumer Law Center, Inc.
• Rights of Consumers to Rectify Defective Assistive Technology Products
• Importance of Consumer Law for Persons with Disabilities

Topics of Discussion

• Assistive Technology Lemon Laws
• Uniform Commercial Code Article 2
• Magnuson-Moss Warranty Act
• State Unfair and Deceptive Practices Acts (UDAP)

Assistive Technology Lemon Laws

• Numerous states have assistive technology lemon laws
• Each state lemon law is different
• Purpose is to protect consumers who purchase assistive technology devices
• Hearing aids sometimes exempt from laws
• Lemons = devices with a substantial defect.
• Usually something broken several times for same reason and repairs are unsuccessful during set period of time.
• Usually require certain number of repairs within set time period before consumer can raise lemon law claim
• Can require reimbursement for repair expenses, acceptance of return, full refund and costs for obtaining alternative device

Uniform Commercial Code - Article 2

• Application
• Enacted in every state except Louisiana
• Provides for a basic framework for consumer warranty law
• Determines when express and implied warranties are created
• Provides initial regulation of disclaimers of implied warranties and rules concerning privacy of contract
• Sets out requirements as to notice of breach of warranty and when a warranty is breached

Scope

• Applies to sale of both new and used goods. Section 2-102.
• Goods = "all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale." Note that UCC does not apply to medical devices used in treatment of patients. In re Breast Implant Product Liability.

Magnuson-Moss Warranty Act

• Magnuson-Moss Warranty Act 15 U.S.C. §§ 2301-2312; 16 C.F.R. Parts 700-703
• Scope
• Sets minimum standards for warranties and disclosure requirements of warranty terms.
• The Act also prescribes standards for informal dispute settlement procedures.
• Damages and attorney fees are authorized.
• In some cases this Act provides more protections for consumers than state law
• Requirements
• Applies only to consumer products manufactured after July 4, 1975.

• Consumer Product = "any tangible personal property which is distributed in commerce and which is normally used for personal, family or household purposes...
• 15 U.S.C. § 2301(1)
• Medical Devices - not covered? Heart vales seen as not customarily made available to consumers but are surgically implanted - Kemp v. Pfizer, Inc.

• Disclosure provisions and minimum requirements for full warranties apply only if the manufacturer has issued a "written warranty"
• Sharply limits disclaimers of implied warranties
• Places some restrictions on a seller's ability to limit consumer remedies.

State Unfair and Deceptive Acts and Practices Acts (UDAP)

• Laws of General Applicability
• Prohibit deceptive and unfair practices
• Provide Strong Remedies
• Injunctive Relief.
• Multiple or minimum damages.
• Attorney Fees.
• Applies to Oral misrepresentations, failure to disclose material facts, and unfair practices.

Other Theories of Liability

• Common Law Fraud
• Strict Liability
• Negligence
• Other State Warranty Law

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Hypothetical Cases

• Van Conversion
• Wheelchair
• Screen Reader Computer Software
  

Consumer Resources

• National Consumer Law Center's Consumer Credit and Sales Legal Practice Manuals.
• Consumer Warranty Law (state and federal).
• Unfair and Deceptive Acts and Practices Acts
• National Association of Consumer Advocates (NACA.Net).
• State Attorneys General.
• State Consumer Affairs Offices.
• Local District Attorney Offices.
• Protection and Advocacy Programs.
• Legal Aid/Services Offices.