Fin24

CPA 'plain language' poser

2011-11-15 11:26

Johannesburg - The Consumer Protection Act's requirement that information about products and services be presented to consumers in "plain and understandable" language is challenging lawyers to find a legally acceptable consensus on how such language can be defined and applied in a way that complies with the law.

In terms of the new legislation, consumers are entitled to receive information in plain and understandable language as part of their "right to disclosure and information", said Neil Kirby, director at Werksmans Attorneys and head of the firm's healthcare, pharmaceutical and life sciences law practice.

"This sounds all well and good, but what is plain and understandable language - and how does one know when this has been achieved, within the context of contractual relations?"

Kirby noted that the failings of language in legal relationships were well documented in South African jurisprudence.

"The difficulty that commercial lawyers generally face," he said, "is ensuring that a client's best interests are captured by the language used, especially within the context of contractual relationships."

Some of the provisions and definitions in the new act relating to "plain and understandable language" were complex, unclear, and open to differing interpretations.

But while the precise scope and ambit of some elements of the legislation were still to be determined, in essence the act aimed to ensure that consumers understood what they were buying, as well as the terms and conditions relating to the transaction, Kirby said.

Buyers of goods and services would be deemed, in terms of the act, to have a threshold of "average literacy skill and minimal experience".

Kirby said that the threshold was therefore particularly low for consumers, but high for suppliers to meet, given that consumers had to be able to understand the communication without "undue effort".

He emphasised that the relevant provisions of the act were designed to be as flexible as possible in order to take into account every possible relationship between consumers and suppliers.

"A great deal of discretion is therefore left to those tasked with enforcing the provisions (including the National Consumer Commission), to determine what is or isn't plain and understandable language. It's the level of intelligence and education of a particular consumer that may very well inform what is plain and what is understandable in any particular circumstance."

Kirby said: "The 'average literate and minimally experienced' consumer is a new animal in South African law. The experience of this consumer will dictate - subject to how some provisions of the act are to be interpreted - whether particular suppliers are able to meet the obligations now legally imposed upon them.

"This experience will also determine what plain and understandable language is - which is to form the basis of the transaction - and whether it is sufficient to protect both the interests of consumer and supplier."

He added that with the rights of consumers taking precedence over the rights of suppliers, suppliers would have to understand what it was that they were required to do in order to provide terms and conditions in plain and understandable language, and also how their particular commercial practices aligned with aspects of the legislation.

"Such compliance is important as it is the use of plain and understandable language that arguably represents the future of contractual relations in SA. The revolution of language is upon us... and it has its roots in sections of the Consumer Protection Act."

This article is to inform and educate, not to advise.

 

Comments
  • 100001161711623 - 2011-11-15 11:48

    Not all manufacturers are rich you idiot. Some are struggling to keep their doors open and people employed. How do you for instance tell the public in plain English what potassium sorbate is?

      Robbie - 2011-11-15 11:54

      A preservative... ;-)

      100003047093721 - 2011-11-15 11:54

      Potassium Sorbate is already plain and simple english. You can't simplify it further. Whether everyone understands is another issue altogether. The jury will be out for a long time on this one.

      Paul - 2011-11-15 12:36

      The point about all this is to remove legalese, not to remove standard names for products and substances. See my post a bit down.

      frances gordon - 2011-11-15 12:44

      First, you would look at your readership. If your readership understood what Potassium Sorbate is (for example, if they were scientists), you could use the term without explanation. However, if you readership did not understand the term, you would have to look how you could explain the term to them. This may well take up some space in your document. This is why plain-language documents are often longer than jargon-laden documents. How would you explain the concept? It would depend on the context. Yes, plain-language work is difficult and it depends on writers and subject matter experts collaborating.

      100003047093721 - 2011-11-15 16:13

      Frances Gordon, you misunderstand here. Potassium Sorbate is a product like sugar and not a concept. Therefore no matter who the audience is sugar will remain sugar, and sulphur dioxide will remain sulphur dioxide (SO2). There is no way of explaining it differently - an egg is an egg - full stop.

      Paul - 2011-11-15 16:43

      @the long numbers. ( see, simplified) How about putting this on the label: In this can is something we call a preservative (with little quotes around and the Dr Evil accent) This stuff will help to keep your foodies from going vrot. We won't bother you with the long name, just trust us. When you have done that for all the ingredients you don't have to put a label on anymore, just send a manual with.

  • Robbie - 2011-11-15 11:52

    Easy... do not use legalese!

  • 100001161711623 - 2011-11-15 11:58

    Then why was our factory told to remove this from our label and use a better "understandable" name for it? I fully agree there is no other word for it!

      100003047093721 - 2011-11-15 15:55

      The commissioner does not have enough work and she wants to earn her keep. She also does not understand what Potassium Sorbate is,and she wants to understanding it herself, and she has told herself she is on to something. In the process she is causing you guys just extra uneccessary work. Ask her to suggest an understandable name instead of Potassium Sorbate. Maybe just put the chemical symbolic expression.

      Martin - 2011-11-16 08:36

      I cannot believe that they made you remove Potassium Sorbate from your label. I don't know what it is exactly, but if I don't know what "New York" is, how would you phrase it otherwise?

  • Paul - 2011-11-15 12:34

    Shame.. poor things. Now they know hoe we feel every time we have to pretend to read a contract. Here is an example: Notwithstanding any provision of this policy including any exclusion, exception or extension or other provision not included herein which would otherwise override a general exception, this policy does not cover: Sigh.

      100003047093721 - 2011-11-15 16:44

      And to me Paul, educated as I am, says exactly nothing, but it is rediculous to ask someone to write Potassium Sorbate in simple language. Its like asking someone to further simplify sugar.

      Martin - 2011-11-16 08:34

      I agree, that statement doesn't make any sense, but I also agree that there is a limit to simplification. Unless we start writing books for contracts, it would be difficult to phrase certain things in plain English. Also, one needs to consider what "average literacy" means in South Africa, which has a reasonably low literacy rate in comparison to the developed word. Therefore, we would have to be able to explain these things to a person with Grade 10.

  • frances gordon - 2011-11-15 12:38

    "What is plain and understandable language - and how does one know when this has been achieved, within the context of contractual relations?" Plain-language practitioners around the world have devoted much time and effort to try to answer this question. It is important that corporations and lawyers are well-versed in current techniques of measuring plain language, for example, user testing methodologies. Although user testing is essential, some type of expert analysis using objective plain language principles is also useful to assess whether a document is in plain language. I think this is a great article. However, I believe we must be careful in assumptions such as the one made here that education and intelligence 'inform' what is understood. Believe it or not, in my 15 years of plain-language practice, I have often found that highly educated people struggle with financial or legal documents, while people with less education are better versed in these matters. Frances Gordon Simplified

      Paul - 2011-11-15 15:32

      All very nice, but for plebs like me,(English is not my first language), the habit of people to use multiple adjectives and big words make it difficult to understand. For example: "objective plain language principles" or "methodologies". Without the "objective" in it conveys the same message, and "methods" work as well. Sure this one is relatively easy to understand, but some people have to actually replay the words and think about it. The nasty habit of creating long sentences by stringing them together with commas is probably the worst thing one can do in my opinion. Very very few people write the way they talk, and I believe if you wrote a document the same way you talk to your mates around a camp fire (without the curses) it would be so much easier to understand. Simplistic I know.. but something to aspire to.

      Paul - 2011-11-15 15:35

      ps.. not taking you on... just trying to show that the one man's simplified is the other man's nightmare.

      Andrew Weeks - 2011-11-15 18:09

      Hi Frances, "...in my 15 years of plain-language practice, I have often found that highly educated people struggle with financial or legal documents, while people with less education are better versed in these matters." Any ideas about why that might be true?

      frances gordon - 2011-11-16 12:14

      @Paul - you are quite right to point this out! It is hard to understand one's audience, especially on open articles on the Web. Perhaps this highlights my point - testing a document with real readers is essential to complying with plain-language laws. If I had done more research, I would have found out that many readers do not understand this jargon. That said, I have no excuse for 'methodologies'. It's a case of 'Excuse the complex post, I did not have time to write a plain-language one'? @Andrew - It's hard to explain why in a reply as it's a long answer with lots of 'buts'. Sometimes it's to do with life experience...

  • ernst.rosant - 2011-11-15 13:09

    "plain and understandable" language (layman)... no *,** or legal jargon, etc... If companies can spend more money on marketing than it does paying its employees, they can state the pro's and con's about their products and services in plain English

      100000859619065 - 2011-11-15 16:37

      ernst.., The "real" (layman's term) issue here is - as with almost all "laws" (layman's term) passed post '94, none were properly "though through" (layman's term)... As Kirby said - kindly define "plain English"..? The reality (layman's term) is that the said element of the 'Act' will not survive 2 minutes in a bona fide legal challenge. I would suggest - unless the (relevant) state department can produce a 'Dictionary of Plain English' - it is 'on a hiding to nothing' (in plain English that is).

  • 100003047093721 - 2011-11-15 16:58

    Ibuprofen, Codeine, paracetamol, morphine and Aspirin are all painkillers. Would the commissioner rather have the simple english "pain killer" on the packaging, rather than the more "difficult" real names of the contents of the tablettes?

  • InternetMan - 2011-11-15 17:45

    LOL frances gordon is rocking the movember mo'. You go girl!

  • Gerald - 2011-11-15 23:51

    They should force consumers to take time & initial all 101 clauses not pages. This "ok now sign every page" must end.

  • sxp - 2013-02-28 20:17

    It is simple: make sure the words mean what is in normal dictionaries not law dictionaries. I am sure the liarwers hate this idea as they have been bamboozling people for ages with their version of languages.

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