You've heard of the consumer protection act (CPA), but how does it actually benefit you, the consumer?
Health law consultant, Elsabe Klinck, recently gave delegates at the 5th Annual Clicks Pharmacy Conference in Cape Town the low-down on the CPA. Klinck's talk focussed on how the CPA applies to the pharmacy.
"The Act applies to everything you sell, and to the service, advice and recommendations you provide as a professional or as a sales assistant," she said.
The CPA stipulates eight fundamental rights, seven of which apply to the pharmacy business. The eighth covers issues affecting laybyes.
Here are the seven fundamental human rights of consumers embodied by the CPA:
1. Right to choose.
2. Right to privacy.
3. Right to disclosure and information.
4. Right to fair and responsible marketing.
5. Right to free and honest dealings.
6. Right to fair value, good quality and safety.
7. Right to fair, just and reasonable terms and conditions.
Here is an explanation of what these rights actually mean to the consumer when they visit the pharmacy:
1. Right to choose
The consumer has the right to choose the medication that will be financially affordable to him/her and has the right to decline it if the price is too high.
Bundling of goods (when, for example, you get a free soccer ball with the purchase of a certain flu remedy) and services is prohibited, unless one of the three happens:
The bundling of these goods and services results in economic benefit for consumers.
The convenience to the consumer in having those goods or services bundled outweighs the limitation of the consumer’s right to choice.
That bundled goods or services are also offered separately and at individual prices.
This right protects the customer from having to purchase an unwanted item or service in order to get access to the product they actually need.
3. Right to privacy
The consumer has the right to have her/his private medical information kept confidential. For instance, a pharmacy does not have the right to submit a client’s claim to a medical aid without the patient's consent. Klink gave the example of a man who was angry that his claim had been passed on to a medical aid without his permission. It turned out he was a dependent on his wife's medical aid, and he did not want her to find out that he had seen a doctor or received a prescription.
Right to privacy also covers all marketing communication to consumers. This applies even if the customer is a member of the institution's loyalty programme - the consumer has to give consent to have the information disclosed.
3. Right to disclosure and information
The customer has the right to be informed of all the options available to her/him in terms of products, prices, services, etc. Full disclosure of the price has to be made, even in the case where the price may be covered by the medical aid.
Pharmacists should also use plain language when explaining medical terms, tariffs, procedures, or any other information.Klink gave the example of a pharmacist explaining that a medication will help for a patient's "sugar" instead of using the more complicated term "diabetes", to ensure the consumer understands what this medication is used for. "As long as you have clearly communicated, in plain language, what the consumer can expect from a product and how it works, then you would have complied with the provision of the Act," Klinck said.
Description labels on packaging should also not be misleading.
4.Right to fair & responsible marketing
Closely related to the Disclosure of Information Act is the Right to Fair and Responsible Marketing. This act stipulates that there should be no misleading, fraudulent or deceptive marketing on:
the nature, properties, advantages or uses of the goods or services;
the manner in, or conditions on which those goods or services may be supplied;
the price at which at which those goods and services may be supplied; or
the sponsoring of any event.
5. Right to fair and honest dealings
This act stipulates that the consumer may not in any way be forced, pressurised or tricked into purchasing a product or to use a certain service.
It also requires the institution correct any apparent misapprehension on the part of the consumer. Klinck highlighted a case where a doctor has prescribed a medicine off label - for example when an anti-depressant is used to treat a gastro-intestinal problem.
"This really highlights the need to be open and honest with the consumer. You cannot fail to correct an apparent misapprehension and to be honest about the performance of a particular product," she said. "Be very careful about what you claim that a product can and will do."
The return and substitution of goods are also covered under the right to fair and honest dealings. This is a complicated by two conflicting acts:
Section 56 states that a product has to be replaced within six months of purchase if the product is not reasonably purposeful, good quality, durable or free of defects. However, Section 20(3) prohibits the return and refund of medication unless the patient has a suspected adverse reaction and the product needs to be returned to the supplier for testing.
So what is a consumer to do when they bought a product at a pharmacy but feel it isn't working?
Section 20(3) says that where public regulation prohibits the return of a product, it cannot be accepted back. This is the case with all medicines, registered or unregistered; where the Pharmacy Act’s guideline prohibits pharmacists from talking back a medicine.
However, this is still a difficult point to navigate as not all people have the same reaction to medicines, and a product that works for one person, may be perceived as being of inferior quality by another person. Some treatment regimens also take a long time to achieve the wanted effect, and impatient consumers, to whom the delayed effect have not been properly explained, may think that the product is ineffective.
"Any risk must be clearly explained beforehand, in plain language. As pharmacists you must make sure that the patient knows what their options are and the risk, options, benefits and costs of each option must be clear," Klinck explained.
6. Right to fair value, good quality and safety
In the case where the customer was given unsatisfactory goods, the liability lies strictly with the suppliers [in this case pharmacies] if they provide unsafe goods, goods encounter a failure, defect or hazard in any goods or inadequate instructions or warnings.
Consumers have a right to receive goods that are suitable for the purpose for which they are intended. The goods will be usable and durable for a reasonable period of time and that the pharmacist complied with the standards and regulatory requirements as stated in the CPA.
7. Right to fair, just and reasonable terms and conditions
The potential risks of a product - which could be very many in the case of medicines - have to be explained to the consumer in plain language. An information leaflet is issued with most medication, but, Klinck argues, are often not in "plain language". Therefore, the responsibility still rests with the pharmacist to communicate important information about the product to the customer.
Consumers that want to find out more about their rights or want to lay a complaint can contact the Consumer Commission at: 0860 266 786 (telephone), 0861 515 259 (fax) or email@example.com(email).
Wilma Stassen@Health24, August 2011
Siphiwo Nkonki@Health24, August 2011