The Pakistani Consumer: Dumb or Dumber?

Abstract

The Competition Commission of Pakistan (CCP) has adopted the notion of ordinary consumer for assessing confusion or deception in ‘deceptive marketing practices’ cases under Section 10 of the Competition Act, 2010. In its first order in this area, the CCP defined ordinary consumer as a person who is ‘the usual, common or foreseeable user or buyer of the product’ and differs from the ‘ordinary prudent man’ under contract law. According to the CCP, this conceptualisation of the Pakistani consumer was important for achieving the goal of implementing the Competition Act 2010 in its letter and spirit, the intent of the law and that of protecting Pakistani consumers from anti-competitive practices. Despite acknowledging that other jurisdictions such as the EU and the US follow the standards of average and reasonable consumer, respectively, the CCP considered that following these standards ‘would result in shifting the onus from the Undertaking to the consumer and is likely to result in providing an easy exit for Undertakings from the application of Section 10 of [CA, 2010]’.In this paper, I argue that the ordinary consumer of the CCP does not have any normative basis either in law or in economics. This standard is also incompatible with the well-established Pakistani trademark law, which employs the notion of ‘consumer’ in line with the concept of bounded rationality where the consumer is unable to make decisions that maximise her utility. Defining the concept of consumer is also imperative as it has practical ramifications for marketers. For example, in the presence of these conflicting standards confusion is bound to arise as whether a marketing campaign should be designed around the concept of consumer as defined by the CCP or around that adopted by higher courts, including the Supreme Court of Pakistan in various trademarks (and passing off or unfair competition) cases. Should marketers prepare separate campaigns so that they are not caught by the provisions of either laws? Would there be one consumer profile for a target market or countless? And would there be a target market or many?To ensure normative as well as positive consistency; to provide legal certainty to marketers and to meet consumer expectations, the CCP should refer to the representative customer profile created by the marketers, in cases of deceptive marketing practices. This is the consumer for whom the product or service or the marketing campaign is created and she is the one who should not be deceived.