In view of the growing integration of international markets, an aspect to be taken into account by multinational companies exporting their products to Latin America is the regulations applicable to the withdrawal of defective products.
The relevant legal norm in the Dominican Republic is the 385 Act of 2005, on Protection to the Rights of the Consumer or User. Also influenced by, Decree 236-08, which contains the regulations for the application of the aforementioned law.
The first aspect to be determined is when a product should be withdrawn from the market. In this sense, article 63 of the consumer protection law, states:
“The supplier is responsible for the suitability and quality of the goods and services offered, sold or rendered in the market. A good or service is considered to be defective, void or insufficient when, by its nature or conditions, it does not fulfill the purpose or utility for which it was intended, it is different from the specifications stipulated by the manufacturer or supplier or reduces its quality or the possibility of its use, than of having known it, the consumer or user would not have purchased it or would have paid a lower price. ”
Paragraph. In the event that a good or service is found to be defective, void or insufficient, without informing the user, the supplier shall be obliged, at the option of the consumer or user, to receive the goods and services, to return the goods Value paid, to grant a reduction in the price or value paid, or to return the goods or services with the qualities, quality and price originally offered. The service providers shall have thirty (30) days, counted from the date of the user’s claim, to demonstrate that any insufficiency in the provision of their services is not imputable to them.”
It’s of vital importance in the this analysis the provisions of articles 35, 36 and 37 of the aforementioned law, which establish the following texts:
“Art. 35.- Risks not foreseen. After introducing a product or service in the market, if there is established the existence of unforeseen risks, defects or alterations that make it dangerous for health or safety, the supplier will be obliged to inform, immediately and publicly, to the competent authorities and the population in general, and must use all appropriate means to ensure timely information on the risks of the product or service to the entire population. The fulfillment of this obligation does not exempt the supplier from the responsibilities that may be established in each case. (Emphasis by underline added by us)
Article 36.- The supplier shall also be obliged to take appropriate measures and to comply with the measures provided by the competent authorities to eliminate or reduce the danger, including the withdrawal or suspension of the affected products or services, as well as replacement or repair, as the case may be.
Article 37.- The Executive Direction of Pro Consumidor (Pro Consumer) will have competence to enforce these measures.
It is worth noting that the law defines a supplier as: “A natural or legal person, public or private, who habitually or occasionally produces, imports, manipulates, processes, packages, stores, distributes, sells or sells products or provides services in the market to consumers or users, including liberal professional services that require for their pursuit a university degree, in what concerns the commercial relationship that entails their exercise and the publicity that is made of their offer or any equivalent act”.
The obligations contained in the Consumer Protection Act are mandatory both for the supplier or exporter as for the local importer or distributor and Article 102 establishes the joint liabilities of both market agents.
In addition, the legal regime establishes sanctions in cases of non-compliance. These penalties, depending on the seriousness of the offense, range from 20 to 500 minimum wages. In 2016, the minimum wage is approximately USD152.00.
Based on the aforementioned legal provisions, we must first of all point out that every supplier or exporter to the Dominican Republic market of consumer products must comply with the legal obligation to inform both the Competition Protection authorities and the Population in general of the existence in the market of products that can represent a risk for the security of the population.
A notice from the supplier or exporter to your local distributor informing you of defects in the product and requesting its withdrawal from the market is not sufficient to comply with applicable legal regulations.
Rodolfo Mesa Chávez