Halil Kardicali

Consumer protection is a matter of various branches of both private law and public law. As well as regulations aimed at protecting consumers in legal transactions in the goods and services markets, regulations prohibiting the use of certain chemical substances in the production of nutrients, which sets forth mandatory standards in goods offered to consumers. In fact, the consumer has been protected for many years by rules of various legal fields, including but limited the Law of Obligations, Commercial Law, Administrative Law, Penal Law within the general legal system in various countries. The Law on Consumers’ Protection 6502 ‘’Consumer Law’’ – the primary legislation governing product liability – came into force on November 28 2013. In this article, hits and misses of the Turkish Consumer Law and its recent developments will be examined from in-house perspective in the field of consumer goods sector.
Consumer Law broadly determines if a product is defective if, at the time of delivery to the consumer: whether it bears one or more features specified on the: packaging; label; promotional material; user’s manual; internet portal; advertisements; or publications; it is not of the quality specified by the seller or determined in technical specifications; or it does not satisfy the purpose of use of equivalent goods, thus decreasing or eliminating the benefits that the consumer can reasonably expect from the product – this includes material, legal or economic defects. In practice, unless the comprehensive scope, majority of legal community interpret the scope of Consumer Law solely under products’ technical defects. However, as mentioned above, protection of the
consumers and their benefit is the principle that ensures background of various laws and its development. For instance, competition law is quite hot topic in Turkish jurisdiction and its authority is the most active governmental agency in Turkey. Furthermore, developments of retail law, e-commerce and researches on marketplaces based on consumer behaviors particularly due to the recent high inflation in Turkish market and foreign exchange fluctuation. In this regard, product compliance or liability should not be limited to product’ defects and flawed products.
Product compliance laws are divided into two main categories covering product liability and product safety, respectively. With regard to product liability, Consumer Law essentially implements the EU Product Liability Directive (85/374/EEC). The key objective of the law is to hold various groups (eg, producers and sellers of goods) liable for any damages caused by defective
products. In relation to the protection of consumers’ rights, the Law on Consumers’ Protection is fully compliant with private law. Product safety, by contrast, is governed by government decrees. Accordingly, this field sees frequent developments as various branches of the administration issue new regulations, decrees and communiqués as secondary regulation provides details regarding inspection of products, their safety and compliance with technical legislations, and measures to be adopted.
The Product Safety and Technical Regulations Law 7223 ‘’Safety Law’’ is the main law regarding product safety. It ensures that the national legislation is in line with the European Union’s 2019 legislation on product safety. The Regulation of Liability for Damages arising from Defective Goods, contains also similar provisions to that of the Product Liability Directive.
Safety Law covers all types of products, without considering whether they are consumer products. Ministry of Trade regularly conduct market inspections. If certain goods or services do not comply with the technical standards and legislation, these entities can impose required measures, such as withdrawal of goods from circulation, limiting or banning marketing of goods, order producers to withdraw and dispose of goods. Reporting obligations and penalties for non
compliance may vary depending on the product type. However, withdrawal of products known as ‘recall’ in practice is the most significant impact in this field. In case of recall decision, announcement has to be made publicly by announcing it in a way that can be easily seen on the homepage of the website for at least six months or by a broadcast on a national television channel between 07:00 and 22:00 or in written and audio form for at least 30 seconds or in a nationally distributed newspaper, posted on a quarter of the page, to be announced during a day through the Press Advertisement Agency. In addition, to eliminate the problem in the product informing all at risk persons directly, when they can be reached and giving information about the places where the product will be returned, or the addresses to which it can be sent, are required to be . Although, voluntary actions that covers all necessary measures to eliminate the nonconformity could
eliminate or mitigate the potential risk, as can be seen obviously, recall has significant impact on companies in terms of their reputation which is beyond the monetary sanction. Therefore, even though as a lawyer we follow-up legislation updates on a daily basis through Official Gazette,
following EU legislation and monitoring compliance program is a must in the field of product liability.
Nowadays, the ministry increased number of on-site inspections and on the safety of imported products by establishing certain technical requirements that imported products must meet before they placed on the Turkish market. Furthermore, products exported to Member state of the European Union are deemed to be placed on the market within the scope of the Safety Law. Exporting is the main purpose for the main players in the Turkish market and due to geographical position of Turkey, players targeting the EU market.. . Therefore, product compliance activity is mandatory in order to comply with the law. On the other hand, law-makers in Turkey completely implement EU communiqués regarding product not only for safety but also energy labelling, efficiency and ecodesign. In this direction, communication with the relevant agencies and compliance measures are required beforehand. For instance, we have experienced importance of this process throughout the implementation of the new energy labelling communiqués in year 2021. Having said that, products to import, products in manufacturing progress and products that already offered to the market have to comply with the technical requirements simultaneously.
In addition to recall risk, community actions are the most significant risk in terms of product liability issues. In different jurisdictions, collective actions are commonly known as class actions in the field of Consumer Law. However, in Turkish legislation, class actions are not defined. According to the Article 74, Consumer Law, The Ministry of Trade, consumers or consumer organizations can initiate a lawsuit for discovery of a series of defective goods on sale, suspension of production or sale, removal of a defect, and recall of goods retained for sale. Aside from technical point of view, due to rapid increase of social networking services advertisement including but not limited to influencer marketing, claims should be reviewed accordingly. Otherwise, goods that do not carry one or more of the features contained in the ad will also be considered as defective.
On the other hand, as of January, 01 2023, the fines and threshold for consumer arbitration committees application increased by 122.93% compared to 2022. Consumer complaints below Try 66.000 must be submitted to consumer arbitration committees. Considering the competencies of consumer arbitration committees, level of awareness of consumers, relatively accessible
application method which is through e-governmental system and in-product liability cases, the Ministry of Customs and Commerce undertakes for the service and expert fees when the consumer arbitrator panels rule against the consumer, consumers’ expect the products last for their life-time rather than its warranty period, the importance of consumer law and its impacts will undoubtedly increase in the near future
Last but not least, the term of refurbished newly introduced in Consumer Law which entered into force as of October, 01 2022. Besides, according to amendment on Distance Contract Regulation, consumers will not be able to exercise right to return products that are installed unless they have a defective claim which will enter into force on January, 01 2024. Lastly, marketplaces are responsible for each consumer transaction in which the seller and provider act against the provisions of the Law and Regulation due to contractual practices.