10 July 2020 5:39 AM GMT
Law serves an important role as a tool for behavioural change in society. As the jurist Hans Kelsen noted, law and social order help bring about important changes in human behaviour. Law also helps to ensure that social life is enabled and made effective. Scholars like Cass Sunstein and Richard Thaler have demonstrated the role of behavioural sciences in disciplines such as economics...
Law serves an important role as a tool for behavioural change in society. As the jurist Hans Kelsen noted, law and social order help bring about important changes in human behaviour. Law also helps to ensure that social life is enabled and made effective. Scholars like Cass Sunstein and Richard Thaler have demonstrated the role of behavioural sciences in disciplines such as economics and law. Thus, law and behaviour are engaged in a cyclical relationship with feedback loops. Consumer law and policy is an area where the application of law as a tool for behavioural change has immense potential. This is evident from the use of law and behaviour in EU consumer policy. This article explores how the EU is an example to bring behavioural approach to consumer law. Additionally, the article highlights how law and behaviour approach may be necessarily significant in the context of child consumers. Suggestions for improving the Indian consumer law framework based on these insights are provided.
Insights from European Union consumer law and policy
Consumer law and policy in the EU use perspectives from law and behaviour to nudge consumers. For instance, there is no doubt that information about the product should reach the consumer. But certain information should reach the consumer at the time of purchase and certain information will be useful at the time of actual usage of the product. For instance, on an e-commerce purchase, it will be significant to know the place where the product is shipped and this information is vital at the time of purchase. Similarly, the details of roaming charges for a particular sim card would be vital at the time of moving out of network border than at the time of purchase of the sim card. Thus, EU consumer policy adopts a choice architecture approach .
Another important feature that EU consumer policy adopts is the standard or yardstick used for defining a 'consumer'. The legal norms keep in mind an 'average consumer' or a 'reasonable prudent person'. This is significant because often business indulges in unfair practices such as using scientific names that may not be understood by the average consumer. For instance, product labelling needs to be simple and recognizable for an average consumer. This will reduce the information asymmetry prevalent among business and consumers. Additionally, simplification of the terms that are used would also bring in clarity.
Along the same lines, a pro-active law and behaviour approach needs to be developed when it comes to child consumer policy. The basics outlined in EU consumer policy form a firm edifice in developing law and behaviour approach towards child consumer policy. The raison d'etre for my emphasis on child consumers needs to be highlighted here.
The concept of child consumer through law and behaviour lens:
Consumption by children extends to all aspects of life. Childhood can very well be considered an all-encompassing consumer culture. Sabnavis Madhukar remarks that due to the exposure and economic status of parents, children are increasingly becoming consumers. Children are often attracted to advertisements and promotional offers. They also demand products. Thus, children at a very young age become consumers. Various studies on market research state consumer behaviour is learned as a child. i.e. if a child sees her parent repeatedly buying a particular product, there are greater chances the child will buy the same product even after growing up. Thus family consumption pattern is an important driver of child consumerism.
Blackwell Roger et.al. have indicated that consumer behaviour is learned as a child. Family communication about purchases and consumer behaviour is the key to purchases by children. Roy Subhadip has noted that children are emerging as consumers due to their increasing influence on the purchasing decisions of their parents. Considering children as the 'new age' customers, marketers globally are devising unique strategies to tap into their portfolio. The 'pester power' of children influence their parents' purchase decisions in their favour. Despite these, the child as a consumer often does not get the required attention.
The economic boom and the rise in purchasing power have resulted in a phenomenon referred to as pester power. Pester power transpires when advertisements, promotional offers, peer pressure and such other influences prejudice children. They pester parents and adults to buy products they want and complement parents and adults as consumers. Children may employ many tactics to get what they want. Pester power results not only in buying a product but also spending more on products of a certain kind. Thus, pester power is real and increases market value.
How Indian Consumer law can be revamped?
Consumer Protection Act 2019 was largely brought to address some of the long-standing gaps such as product liability, mediation as an alternate dispute resolution option and incorporating international best practices. One of the key features includes the Consumer Protection Councils that act as advisory bodies at the district, state and national level.
But the Consumer Protection Act, 2019 also does not define or discuss child consumers and their rights. In this respect, there is a need for revision of consumer protection laws from child consumer perspectives and child consumer choice. The law and behaviour approach is pertinent to a holistic consumer welfare goal. The same may be incorporated through the following means:
Responsible/ethical consumerism requires consumers to be conscious of the holistic impact upon human rights, health, environment, and society due to our present consumption pattern. Sustainable consumption is identified as an important requirement for reaching the goal of sustainable development and human rights protection. Let the focus on child consumer policy and behaviour be an initial step towards it.
The author is an assistant professor at Sai University Chennai, and faculty at Daksha Fellowship. She can be reached at email@example.com. Views are personal.
 Kelsen, H., 1941. The law as a specific social technique. U. Chi. L. Rev., 9, p.75. see al
 Jolls, C., Sunstein, C.R. and Thaler, R., 1998. A behavioural approach to law and economics. Stanford law review, pp.1471-1550.
 Thaler, R.H. and Sunstein, C.R., 2009. Nudge: Improving decisions about health, wealth, and happiness. Penguin.
 Sibony, A.L. and Helleringer, G., 2017. " European consumer protection through the behavioural lens. The Columbia Journal of European Law, p.607. see also Mak, V., 2011. Standards of protection: In search of the 'average consumer' of EU law in the Proposal for a Consumer Rights Directive. European Review of Private Law, 19(1), pp.25-42.
 Helleringer, G. and Sibony, A.L., 2015. EU consumer protection and behavioural sciences: revolution or reform.
 Mishra, A., (2009).Indian Perspective About Advertising Appeal. International Journal of Marketing Studies, 1(2), p.23.
Roger D. Blackwell, Paul W. Miniard, James F. Engel,(2003) 'Consumer Behavior', Ninth Edition, Vikas Publication House Pvt. Ltd., New Delhi, 2003.
 Roy Subhadip (2005). Marketing to children, Marketing Mastermind the ICFAI University Press, PP29-33.
 2015 SCC OnLine Del 8176