Testimony Against H.1323/S. 867
Before the Joint Committee on the Judiciary

Dear Chairman Creedon, Chairman O’Flaherty and members of the Joint Committee on the Judiciary:

As organizations and consumer advocates who represent consumer interests throughout the Commonwealth, we urge the Joint Committee on the Judiciary to reject H.1323/S. 867,  identical bills that would severely weaken consumer rights in Massachusetts.

This bill would turn back the clock on consumer protection over a quarter of a century by once again appearing to require an out-of-pocket loss of money or physical damage (“actual injury”) in order for a consumer to collect damages under the state Consumer Protection Act, Chapter 93A.  It would also eliminate consumers’ rights to join together to fight unfair practices without “actual injury”.

H.1323/S. 867, like the pre-1979 consumer protection act itself, incorrectly assumes that if there is no money lost, there is no injury.  The fact is many consumer wrongs do not result in monetary losses.  For example:

  • If a retailer uses bait and switch advertising to get you into a store, you do not lose money.
  • If your financial data is stolen from a credit card company because of inadequate security, causing a risk of identity theft for cardholders, there is not necessarily a loss of money.
  • If a toy has high levels of lead paint and it is ingested by a child, there is not necessarily a loss of money nor an obvious physical injury.
  • If a landlord enters your apartment without your permission, you do not lose money.
  • If a telemarketer interrupts your dinner despite your being on the do not call list, you do not lose money.
  • If a debt collector harasses or threatens you in repeated phone calls, you do not lose money.
  • If you continue to get unsolicited spam or faxes, you do not lose money.

All these practices are illegal under Chapter 93A, but under the provisions of this bill, the victimized consumer would not be able to hold the perpetrators liable for damages, even the nominal damages of $25.  Worse, without the threat of enforcement via lawsuits for damages, those who engage in these illegal practices have little deterrent from continuing or expanding their wrongdoing.

The purpose of many consumer laws is to disclose information clearly and truthfully so the consumer can make wiser buying decisions, or understand his or her rights.  Other consumer laws are designed to protect privacy, unwanted intrusions, freedom from harassment, or unsafe products.  By their very nature, violations of these laws do not result in a loss of money, so to require such a showing in order to right these wrongs, creates an insurmountable hurdle.

This bill would give a green light to those who would engage in false advertising, debt collection harassment, telemarketing abuses, invasions of privacy, and other abuses that do not result necessarily in monetary losses.

Consumer laws are only as effective as their enforcement mechanisms.  The limited resources of the Attorney General’s Office prevents it from seeking redress for all wrongs.  Therefore, a secondary means – the private lawsuit – is needed as an additional layer of deterrence. Without it, consumers are left with rights that have no remedies, even to collect minimal damages, and their right to be heard in the courtroom

Finally, the retroactive provision of the bill (which may be unconstitutional) will have the effect of nullifying active cases of alleged wrongful conduct, thus giving the companies involved amnesty for their past violations, and leaving injured consumers with no avenue for redress.

I urge you to reject H.1323 and S. 867, which will irreparably weaken consumer rights by undermining enforcement of many of the state’s consumer laws and regulations.


Very truly yours,

Edgar Dworsky, Consumer World
Deirdre Cummings, MASSPIRG
Paul Schlaver, Massachusetts Consumers’ Coalition
Stuart Rossman, National Consumer Law Center, on behalf of its low income and elderly clients

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