Chapter 3

Legal Protection for Consumers in Market Intervention

The marketplace does not free hazardous products. Almost every consumer
product can contain hidden dangers indefinite and invisible to the consumer. The main
aims of a product safety regulatory regime are to protect consumers from unreasonable
risk of damage to property or personal injury; provide redress for consumers who suffer
damage or injury; incentivize producers to produce safe products that comply with
minimum standards and punish errant producers for placing unsafe products in the
market.

3.1 Market Surveillance

The market surveillance of products plays an important role in consumer
protection. Its objective is to ensure that only safe products and products that meet the
requirements set out in legislation are placed on the market. In addition to consumer
protection, market surveillance of products is also important for the free movement of
goods and fair competition on the market, as it penalizes economic operators who do
not respect the requirements of the legislation for the marketing of products. 1
Regulation (EU) 2019/1020 of the European Parliament and of the Council of
20 June 2019 on market surveillance and compliance of products and amending
Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/20111
(hereinafter 'Market Surveillance Regulation') became effective on 16 July 2021. 2 The

1
Summary of the 2022-2025 National Market Surveillance Strategy (Article).
2
Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/20111, 2021.
 74

Regulation provides a framework for market surveillance of harmonized products and

complements and reinforces existing provisions of the harmonization legislation of the
European Union, including the control of products entering the European Union market.
Market surveillance is a tool or mechanism to protect consumers from unsafe,
unhealthy and low-quality goods and services. It is initiated with the following purposes
in mind:
(a) Protecting the consumers;
(b) Ensuring a level playing field for businesses; and
(c) Creating a reliable business environment.
These aforementioned tasks are of equal importance and, if executed well, will
create strong confidence among consumers and businesses, resulting in more robust and
competitive markets where more goods and services will be produced and put into
circulation.3
Depending on the institutional framework and planned activities, the following
distinctive approaches to market surveillance may be pursued:
(a) Reactive market surveillance means that the authorities take action on their
own accord; in reactive market surveillance, the authorities take action in
response to specific instances that raise concern (for example, complaints,
notifications, requests for administrative or executive assistance).
(b) Proactive market surveillance campaigns on specific types of products (with
random sampling).4
In China, food processing, textile production, oil products, rubber, metal ware,
leather, chemicals, electronics, glass, machinery, paper and paper products, and
alcoholic drinks are among the city's major industrial products.5 The State shall institute
a system of supervision and chiefly random examination to check randomly samples of
major industrial products which may be hazardous to the health of the human body and
the safety of lives and property, important products which have a major impact on the
national economy and the livelihood of the people, and products claimed by endusers,
consumers or other relevant organizations as having quality problems. The product
quality supervision and control departments under the local governments at and above

3
Myanmar Consumer Commission, Handbook on National Consumer Protection Programme (2021-
2925), 2021, p-12.
4
Ibid.
5
https://context.reverso.net/translation/english-chinese/major+industrial+products.
 75

the county level can also organize the supervision and random examination of product
quality, but duplicated examination shall be avoided. The results of the random
examinations shall be made public.6
Law of the People's Republic of China on Import and Export Commodity
Inspection is enacted with a view to strengthening the inspection of import and export
commodities, regulating the inspection of import and export commodities, protecting
the public interests and the lawful rights and interests of the parties involved in import
and export trade, and promoting the smooth development of China 's economic and
trade relations with foreign countries. The inspection of import and export commodities
shall follow the principles of protecting the health and safety of human beings,
protecting the life and health of animals or plants, protecting the environment,
preventing frauds and safeguarding national security.7 For import and export
commodities which are subject to inspection by the commodity inspection authorities,
the Customs shall check and release the commodities on the strength of the Documents
for Customs Clearance issued by the commodity inspection authorities to importer and
The commodity inspection authorities shall complete the inspection and issue an
inspection certificate within the time limit specified uniformly by the State
administration for commodity inspection to exporter.8
Drug safety and post-marketing surveillance have become important public
health issues in China. The national drug safety system, headed by the State Food and
Drug Administration (SFDA) is quite likely to identify it, investigate it, and solve it.
The SFDA was able to react quickly by either issuing a drug-use warning or
withdrawing the drug from the Chinese market as well. The Chinese system for drug
safety surveillance, which relies strongly on the adverse drug reaction (ADR) reporting
and monitoring system and some major Chinese drug-safety regulations. At the
foundation of China’s drug safety surveillance program is its National Center for ADR
Monitoring.9
Holders of marketing authorization for drugs shall be responsible for the
nonclinical laboratory studies, clinical trials, production, distribution, post-market

6
Article 10, Law of the People’s Republic of China on Product Quality, 2000.
7
https://www.fao.org/faolex/results/details/en/c/LEX-FAOC152646/.
8
Sections 11 and 15, Law of the People's Republic of China on Import and Export Commodity
Inspection, 2002.
9
Wenmin Du (PhD), Jeff J. Guo (PhD) and Christina M. L. Kelton (PhD), Drug Safety Surveillance in
China and Other Countries: A Review and Comparison, Value in health (volume 11), 2008.
 76

studies, and surveillance, reporting, and disposition of adverse reactions, among others,
of drugs in accordance with the provisions of this Law. Any other institutions or
individuals engaged in the research and development, production, distribution, storage,
transportation, and use, among others, of drugs shall assume corresponding
responsibility in accordance with the law.10
Food safety risk monitoring workers shall have the right to enter the relevant
planting and breeding places of edible farm produce and the places of food production
and trade to take samples or collect the relevant data. Payments shall be made at the
market price for the samples taken. Where the food safety risk monitoring results show
that there may be any potential food safety hazards, the health administrative
department of the people's government at or above the county level shall, in a timely
manner, notify the food safety supervision and administration department and other
relevant departments at the same level, and report it to the people's government at the
same level and the health administrative department of the people's government at a
higher level. The food safety supervision and administration department and other
relevant departments shall organize further investigations.11
In Thailand, particular goods inspected and certified by Thai Industrial
Standards Institute (TISI) bear the mandatory TISI mark, enabling entry to the Thai
market. The mark must be affixed on the controlled goods, once the license from TISI
is received. There are two types of test marks, depending on mandatory or voluntary
certification. All product suppliers, including distributors, manufacturers and importers
may apply for the mandatory TISI mark, if their product is assigned to one of the
regulated safety standards. Market surveillance is passed after approved by TISI.12
Drugs, biologics, and medical devices are regulated by the Thai Food and Drug
Administration (Thai FDA), under the supervision of the Ministry of Public Health
(MOPH). More precisely, the Drug Division of the Thai FDA is the main regulatory
body controlling pre-marketing and post-marketing of Drugs and Biologics in the
Kingdom; while the Medical Device Control Division of the Thai FDA is the main
regulatory body controlling pre-marketing and post-marketing of medical devices in
the Kingdom. The Drug Act, B.E. 2510 (1967), as amended, provides the regulatory

10
Article 30, Drug Administration Law of the People’s Republic of China, 2019.
11
Article 15 and Article 16, Food Safety Law of the People's Republic of China (2021 Amendment),
2021.
12
https://www.tuv.com/market-access-services/en/certification-filter/tisi-approval.html.
 77

framework for the marketing authorization and post-marketing surveillance of drugs

and biologics in Thailand. The Medical Device Act, B.E. 2551 (2008), as amended,
provides legislation governing the marketing authorization and post-marketing
surveillance of medical devices in Thailand. 13 Although Thai Drug Act prescribes the
rules for monitoring obligations to supervise medicinal products, the Act only
empowers the competent authorities to monitor drug and enter the premises for the
production, sale, importation of storage of drug, take reasonable quantities of drug as
samples for testing or analysis, size or attach drug and equipment concerned with
offense.14
The competent officer shall have powers to take reasonable quantity of food for
inspection and analysis.15
In Myanmar, market surveillance inspectors are responsible for conducting risk
assessments of products before and after they are released in the market and for
monitoring label on products.16 Furthermore, they are tasked with investigating whether
businesses violate existing laws and regulations. The inspector inspects whether the
information of finding the suspected hazardous goods or services is valid and findings
will be reported the relevant head offices of DOCA in the States, Regions and Union
Territory.17
Market surveillance inspectors are accountable for the efficiency and
effectiveness of their activities which shall be performed in a non-discriminatory
manner face-to-face locally-manufactured as well as imported products. In doing so,
they need to adhere to applicable laws, regulations, and standard operating procedure
(SOP) or guidelines.18 In 2022, in exercise of the power conferred by Section 83(b) of
the Consumer Protection Law (2019), Ministry of Commerce, Department of Consumer
Affairs hereby issues Directive No 1/2022 concerning Market Surveillance Process
Instruction. The Directive provides that the duties of inspectors to follow when
inspection under Section 13(a) and Section 4 of the Consumer Protection Law (2019),
the qualification of inspectors and the inspector can take sample if they found hazardous
products when inspection in market. And the inspector can surveillance whether

13
Tilleke & Gibbins, The Pharma Legal Handbook of Thailand, 2022, p-10.
14
Section 91(1) to (4), Drug Act of B.E.2510 of Thailand, 2001.
15
Section 43 (3), the Food Act B. E 2522 of Thailand, 1979.
16
Section 15 (a) and (b), the Consumer Protection Law of Myanmar, 2019.
17
Section 15 (d) and (e), Ibid.
18
Wenmin Du (PhD), Jeff J. Guo (PhD) and Christina M. L. Kelton (PhD), Drug Safety Surveillance in
China and Other Countries: A Review and Comparison, Value in health (volume 11), 2008.
 78

attached the labelling on products or not under Section 15(b) of the Consumer
Protection Law (2019).19
Food and Drug Administration shall assign responsibility as food Inspectors to
the staff subordinate to it in order to carry out inspection of food and inspection as to
whether or not there is observance of good manufacturing practices.20
In China and Thailand, there is no the provision for post market surveillance
was mentioned in Consumer Protection Law. But Drug Administration Law of the
People’s Republic of Chian and Drug Act of Thailand enacted the competent authorities
have power to monitor drug. For Food products, China and Thailand prefer to inspect
in pre-market and on export and import products. In Myanmar, Consumer Protection
Law was enacted to take market surveillance by inspectors from DOCA that they
inspect labelling and complainant issue. There is no provision in Nation Drug Law for
surveillance in post market and the National Food Law insert inspection clause but this
clause may be concerns both pre and post market inspection. FDA inspect with Mobile
Team and they have duty to announce banned products not to use only. Unsafe Product
Recall and Ban System is implementing by Department of Consumer Affairs.

3.2 Unsafe Product Recall and Ban System

Consumer product safety law has emerged and reforms have begun by creating
post-market intervention powers for consumer affairs regulators, allowing them to ban
or recall goods found to be unsafe; and sometimes pre-market powers, to set minimum
performance or information standards before general consumer goods can be put into
circulation. In addition, many of these regulators still lack capacity and jurisdiction,
especially for pre-market powers, which are reserved for other parts of government or
specialized agencies (e.g. for foods and drugs).21
3.2.1 Recalling Unsafe Product
Product recall is to limit liability for corporate negligence. A manufacturer that
is supplying a hazardous product should recall it from the distributor immediately, if
required in order to prevent cases of injury. If this measure is insufficient in preventing
cases of injury, the manufacturer must without delay recall the product from those

19
Directive No 1/2022 issued by Ministry of Commerce, Department of Consumer Affairs.
20
Section 19 (c), the National Food Law of Myanmar 1997(amended 2913), 2013.
21
Luke Nottage, Justin Malbon, Jeannie Paterson, Caron Beaton-Wells Frontmatter, ASEAN
Consumer Law Harmonization and Cooperation, Cambridge University,2019, p-43.
 79

consumers that have purchased it. The recall should be carried out to the extent that is
reasonable, considering the need to prevent cases of injury.22
In China, where a defect of a product is found after the product is put into
circulation, the manufacturer or seller must take remedial measures such as warning
and recall in a timely manner (Article 46, Tort Law). There are no other general
conditions and standards applicable to recall of products. However, there are specific
regulations relating to specific products, where product recalls are divided into
voluntary and compulsory recall. Under the Measures for the Administration of the
Recall of Defective Consumer Goods, voluntary recall means manufacturers must
establish the defect information collection, analysis and processing system. If they
confirm that there are defects in consumer goods, they shall immediately take measures
to stop manufacturing, selling and importing defective consumer goods, and implement
a recall in accordance with the law. Compulsory recall means where a related quality
inspection department deems that there is any defect in any consumer goods, it must
notify the manufacturer to implement a recall.23
The China Food and Drug Administration (CFDA) is the ministry-level
administrative body in charge of administration of pharmaceuticals, medical devices,
food and cosmetics in the People’s Republic of China (PRC). As part of its powers and
responsibilities, the CFDA also takes charge of the recall of medical devices and
pharmaceuticals distributed within the territory of the PRC. Under the guidance,
coordination and supervision of the CFDA, its counterparts at the provincial level (ie,
the Food and Drug Administration (FDA)) implement and monitor recalls of medical
devices and pharmaceuticals within their respective provinces.24
The Consumer Rights Law establishes a general requirement for a business
operator to report to the relevant authorities any material product defect that may cause
personal injury or property damage to a consumer. The business operator is also
required to inform the public of such defect and to undertake preventative measures,
such as ceasing sales, giving warnings, recalling, making harmless disposals of or
destroying the relevant products and stopping production.

22
Dr Subrata Das, Quality Characterization of Apparel, Product Recall Journal, 2009.
23
Honghuan Liu and Xi Zhou FenXun Partners, Product Liability and Safety in China, EU, United
Arab Emirates, UK (England and Wales) and United States, Thomson Reuters, 2018.
24
Baker McKenzie, Global Product Recall Handbook, 2018, p-83.
 80

Business operators should, upon discovery of defects of the commodities or

services they supply that are liable to cause harm to persons or property, immediately
report to the administrative departments concerned, inform consumers, stop production
and sales, and adopt measures, such as alert, recall, harmless treatment and destruction,
to prevent damage. Where recall measures are taken, the operators will be liable for the
consumer’s necessary expenses caused by commodity recalls.25
According to the Consumer Products Recall Measures, manufacturers are the
primary entities responsible for recalling defective consumer products.
“Manufacturers,” for this purpose, refer to enterprises that are established legally within
the territory of the PRC and produce consumer products with the product qualification
certificate issued in their own names. Enterprises importing consumer products from
overseas and selling them in the PRC or authorized institutions of overseas enterprises
located within the PRC are also deemed as manufacturers for the purpose of a consumer
product recall.26
The recall of consumer products distributed within the territory of the PRC can
be initiated either by the manufacturer as a “voluntary recall” or by the General
Administration of Quality Supervision, Inspection and Quarantine of the People's
Republic of China (AQSIQ) or the competent Quality and Technical Supervision (QTS)
as a “directive recall.” Manufacturers are required set up a system to collect, analyze
and process information on product defects and the safety of consumer products. For a
mandatory or voluntary recall, the manufacturer is required to file a recall plan with the
AQSIQ or its local counterparts within five working days after confirming that a
product is defective or within five working days after being ordered to recall the
product. Manufacturers are also required to submit progress reports and a summary
report for the recall to the competent QTS. Sellers, lessors, repairers, component
suppliers, entrusted manufacturers and other business operators who are aware of
possible defects of consumer products shall notify manufacturers of the issue and report
to the QTS at the same time. In such cases, the business operators shall stop selling,
leasing and using the defective products and assist manufacturers to carry out recalls. 27

25
Article 19, Law of the People's Republic of China on the Protection of Consumer Rights and
Interests, 2013.
26
Baker McKenzie, Global Product Recall Handbook, 2018, p-84.
27
Ibid, p-85.
 81

Manufacturers shall also report recalls conducted outside of the PRC of

defective products that are also sold in the PRC to the local QTS, as well as to the
AQSIQ. The PRC authorities took an ad hoc approach in promulgating separate recall
regulations for certain high-risk products. These products include pharmaceuticals and
medical devices, automobiles and food products. The Drug Recall Measures require
that, with the assistance of drug operating entities (such as dealers and retailers) and
entities using pharmaceuticals (such as hospitals), drug manufacturers (including
foreign drug manufacturers) shall conduct the recall of pharmaceuticals that have been
put in the market but are found to have “potential safety threats” in accordance with the
relevant procedures. “Potential safety threats” is defined to mean the unreasonable
danger posed by pharmaceuticals to personal health or safety resulting from research
and development or production of pharmaceuticals. Drug manufacturers are required to
establish sound and complete data recording and retention systems in respect of quality
assurance and adverse drug reaction and report the same to the local FDAs in a timely
manner.28
Similarly, according to the Medical Device Recall Measures, manufacturers of
medical devices shall conduct recalls of “defective” medical devices in accordance with
the relevant procedures.
For both medical devices and pharmaceuticals, recalls are categorized into three
classes according to the severity of the defects involved:
1. Class I Recall: when the use of the pharmaceuticals or medical devices might
cause (or has already caused) severe health damage
2. Class II Recall: when the use of the pharmaceuticals or medical devices might
cause (or has already caused) temporary or recoverable health damage
3. Class III Recall: when recall is still necessary even if the possibility of causing
damages by the use of the pharmaceuticals or medical devices is remote.29
The manufacturer shall prepare and implement a recall plan according to the
applicable recall classification of the products involved, and reflective of the
distribution and use of the medical devices and pharmaceuticals subject to the recall.
The detailed recall procedures, such as the time limit for notification of the recall, may
slightly vary with each classification.

28
Baker McKenzie, Global Product Recall Handbook, 2018, p-86.
29
Ibid, p-87.
 82

The Food Safety Law of the PRC effective in 2015 (the “Food Safety Law”),
the Provisions on the Administration of Food Recall promulgated by the AQSIQ
effective in 2007 (the “Food Recall Provisions”) and the Administrative Measures for
Food Recall promulgated by the CFDA effective in 2015 (the “Food Recall Measures”)
are the main rules regulating recall of food products (the latter two of which provides a
detailed legal framework in this aspect). The CFDA and AQSIQ and their local
counterparts supervise and administer food product recalls.
Food recalls are classified into three levels based on the severity of the hazard:
1. Class I Recall: when unsafe food has caused or may lead to food pollution,
foodborne diseases which cause serious harm to physical health or even death, or the
unsafe food has wide circulation and significant social impact
2. Class II Recall: when unsafe food has caused or may lead to food pollution
and foodborne diseases which cause harm to physical health at an ordinary level or with
a relatively small circulation and social impact.30
3. Class III Recall: when unsafe food has caused or may lead to food pollution
and foodborne diseases that cause harm to physical health to a mild degree or the food
has false labels or deficiency in its labels and instructions.31
A manufacturer is required to immediately report any food safety hazard to the
competent local counterpart of the AQSIQ (ie, QTS). If a manufacturer determines that
its food products are unsafe, it must stop the production and sale of the affected food
products immediately, and inform the distributors and the general public to stop the sale
and purchase of the unsafe food products. This notice must be made within a specific
time period, according to the classification of the recall. The manufacturer shall file
recall plan reports for the recall with the CFDA and AQSIQ (or their local counterparts).
Food manufacturers shall submit recall progress reports according to required interval
periods and summary reports within 15 days upon the expiry of the food recall time
limits to the AQSIQ or the QTS. If the manufacturer fails to undertake a voluntary
recall, the CFDA and the AQSIQ may issue a notice of directive recall to the
manufacturer.32
In case of imported food products, the PRC law mainly imposes the recall
obligations on importers. Specifically, where imported food products have safety issues

30
Baker McKenzie, Global Product Recall Handbook, 2018, p-89.
31
Ibid.
32
Ibid, p-90.
 83

that have or may endanger human health or life safety, importers are required to carry
out a voluntary recall and make reports to the local FDA and CIQ. The importers shall
also publish relevant information to the public, notify the sellers to cease the sale and
notify the consumers to cease use.33
Thailand does not have specific legislation requiring business operators to
report product recalls to the authorities. The Consumer Protection Act mandates that
goods intended for sale in Thailand must be safe. It outlines specific requirements that
business operators must consider-
Goods must meet safety standards based on their characteristics, components,
design, packaging, assembly instructions, and consumer expectations. The
presentation, labeling, warnings, and usage instructions must adequately address safety
concerns. Businesses must assess potential risks when goods are used in conjunction
with other products and consider vulnerable consumer groups. Compliance with
universally accepted safety measures and best practices is required. The Act prohibits
business operators from manufacturing, ordering, or importing dangerous goods that
could pose risks to life, health, or property, except for goods regulated by specific
laws.34
However, under the Consumer Protection Act, if the Board suspects that any
product is harmful to consumers, the Board can investigate and test the product. If, in
its view, the products are harmful, the Board may order the business operators to recall
the products, bring back exported products, prohibit the sale of such products or order
the destruction of those products remaining on the market.35
The Consumer Protection Act empowers the Board to order a product recall if
the results of a test on suspected products by a business operator or by the Board show
that the products may be harmful to the consumers and this cannot be prevented by the
addition of a label. In the case where the Board, concerning safety, has prohibited the
sale of the goods according to Section 29/9 Paragraph 2, the entrepreneur that is the
producer or importer shall recall the goods from the market and announce the recall of
the goods from the consumers and eliminate the risk of danger from the recalled goods
that have been recalled and in their possession. In the case where the Board, concerning
safety, has issued an order to destroy said goods, when the entrepreneur has destroyed

33
Baker McKenzie, Global Product Recall Handbook, 2018, p-94.
34
Legal 500, Consumer Protection: Laws and Regulations Governing Product Recall (Article), 2024.
35
Baker McKenzie, Global Product Recall Handbook, 2018, p-286.
 84

said goods, they must report to the Board, concerning safety, in without delay. The
entrepreneur shall compensate for the price of goods and be responsible for the
expenses of the consumers which occur from the operation. The entrepreneur shall
announce, notify, or advertise the news information concerning the operation to the
consumers within three days from the date they are notified of the prohibition order.36
The Act on Court Proceedings for Consumer Cases also contains an express
reference to product recalls. It confers a discretionary power upon the court to order a
product recall. Such an order would require the recall to be performed within a
stipulated period and at the expense of the supplier.37 If a case goes to court, the court
has the power to order the business operator to publish an announcement and recall the
affected products for rectification or replacement. If the products cannot be rectified or
replaced, the court may award damages in an amount it deems appropriate given the
condition and nature of the products at the time of the recall and the perceived integrity
of the business owner. Furthermore, the court has the power to prohibit the business
operator from manufacturing or importing such products and to order the destruction of
any remaining products.38 Note that the court will have the power to order a product
recall once the court renders a judgment or order to strike out the case. In other words,
if there is no case before the court, the court has no power to recall products.
The manufacturer or the importer is responsible for recalling dangerous
products from the market/consumers and compensating consumers. The business
operator, who is the manufacturer or the importer, is required to submit a plan for
consumer rectification and compensation within seven days from the date of receipt of
an order from the Committee on Safety prohibiting that business operator from selling
unsafe products or services. If the business operator fails to prepare the plan, the
Committee on Safety may issue the plan at the expense of the business operator. Once
the plan is approved by the Committee on Safety, the business operator must publish
the plan within three days from the date of notice from the Committee on Safety. This
plan shall not prejudice the rights of consumers to initiate further litigation against the
manufacturer of the importer.39

36
Section 29/10, Consumer Protection Act (No. 4) B.E. 2562 of Thailand, 2019.
37
Baker McKenzie, Global Product Recall Handbook, 2018, p-286.
38
Ibid.
39
https://www.inhousecommunity.com/article/amendment-consumer-protection-act/.
 85

Under the Drug Act BE 2510 (1967), if the competent officials (eg, the Food
and Drug Administration) learn that a drug is not safe or might be harmful to drug users,
they are authorized to order the recall of those drugs, either by the competent officials
themselves or by the importer, seller or manufacturer of those drugs. In the latter case,
the recall must be conducted within a period specified by the competent officials, and
the competent officials are also authorized to destroy such recalled drugs. 40 Thai Drug
Act should be amended by adding Section 26/1 “Before distribution of medicinal
products, licensee to sell must submit a benefit-risk evaluation report to the Food and
Drug Administration.”
Furthermore, in the case that the competent officials know that any drug may
be dangerous to the consumers, the competent authorities are authorized to recall
dangerous products and to order licensee to produce, sell, or import to recall their
products from the market41 and sent to the FDA within 15 days if the product has been
found to cause serious health problems or within 30 days if the product is suspected of
causing severe health problems.42 Besides, the competent authorities are empowered to
destroy such products.43
The Food and Drug Administration (FDA) is recalling 42 batches of high blood
pressure drugs from five manufacturers after finding contaminations that may cause
cancer in 2023.44
In Myanmar, before 2019 Law promulgated, there is no specific product recall
requirement for food and drink and there are no reporting requirements in law, although
it would be advisable to voluntarily report and recall defective products to lessen
potential liability in actions for negligence. No recall procedure has been developed yet
under the CPL, although the CDSB has clear power to order a recall. 45
The Directive is issued as per the power vested under Section 83 (b) and Section
33 of CPL, which states that DOCA must stipulate the product recall process or prohibit
the distribution of perilous products. This Directive seemingly ensures that in terms of
perilous products, DOCA gives rights to business owners, government bodies, and the

40
Baker McKenzie, Global Product Recall Handbook, 2018, p-287.
41
Section 91(5), Drug Act of B.E.2510 (as amended in 2019) of Thailand, 2019.
42
Ministerial Regulation No. 20 B.E. 2525 (1982) Issued under the Provisions of Drug Act B.E.2510
(1967).
43
Sutthinee Borisuttham, the Consumer Protection: Product Recall, Thammasat University, 2011.
44
www.bangkokpost.com/thailand/general.
45
Baker McKenzie, Global Product Recall Handbook, 2018, p-286.
 86

public to report on the products so that the recall process can proceed without delay,
and compensation will be made according to the procedures prescribed in the Directive.
Government agencies will cooperate with DOCA to provide full protection for
consumers. Products are recalled based on factors such as a hazardous design that was
not present at the time of manufacture but may arise during use, defects in the products
in the production process or during transportation or storage before distribution to the
market. Products subject to recall also include defects that render them unsuitable for
use and products that do not meet the safety criteria for consumer products or possess
perilous characteristics. 46
The Myanmar Food and Drug Board of Authority (FDA) was formed under The
National Drug Law 1992 (NDL). The NDL prohibits the sale of unregistered,
counterfeit or adulterated drugs, among other things. However, the NDL does not lay
down detailed procedures that relate to the recall of such drugs. In practice, the FDA
makes inspections and will confiscate drugs that fall into such categories. While there
is no specific power granted to government agencies to recall drugs from the market,
this does happen following an inspection that reveals defective drugs. There is no
special legislation relating to medical devices. 47
In 1997, the FDA was expanded by the National Food Law (NFL) to include a
number of food experts. The functions and duties of the FDA were also expanded to
include establishing policies to ensure quality assurance in relation to food. A number
of offenses were created relating to the production or sale of unsafe food. There is
though no power to order a recall of such food. However, as with the FDA drug
inspections, the FDA does conduct food inspections from time to time and orders the
destruction of food that is in breach of the NFL.48
3.2.2 Product Ban System
There are two types of bans on products, temporary and permanent. Simply put,
products that cause minor damage to consumers are temporarily banned. In contrast,
products capable of causing death to consumers are permanently banned.
In China, arms, ammunition, and explosives of all kinds; counterfeit currencies
and counterfeit negotiable securities; printed matter, magnetic media, films, or
photographs that are deemed to be detrimental to the political, economic, cultural, and

46
Directive No 3/2022 issued by Ministry of Commerce, Department of Consumer Affairs.
47
Baker McKenzie, Global Product Recall Handbook, 2018, p-207.
48
Ibid.
 87

moral interests of China; lethal poisons; illicit drugs; disease-carrying animals and
plants; foods, medicines, and other articles coming from disease-stricken areas;
old/used garments; and local currency (RMB) are prohibited from entering China . Food
items containing certain food colorings and additives deemed harmful to human health
by the National Health and Family Planning Commission (NHFPC) are also barred.49
In addition, China restricts or prohibits the importation of certain commodities
related to the processing trade. The catalogue of commodities which are restricted or
prohibited from importing for use in the processing trade is designed to shift the
direction of China’s processing trade toward handling commodities with higher
technological content and greater value-added potential. The catalogue identifies
several types of “prohibited commodities”: used garments; used publications with
licentious content; radioactive or harmful industrial waste; and junk and restricted
commodities. This list was most recently revised in 2015.50
In Thailand, the Committee on Safety is empowered to order the business
operator to examine or prove whether a product or service is dangerous. However, if
there are grounds to believe that a product or service is dangerous, the Committee on
Safety can also order the business operator to temporarily suspend the sale or service
until the result of the examination is known. In any case, the business operator will be
required to submit the report of examination to the Committee on Safety within a
prescribed period.51
If the Committee on Safety finds that a product or service is dangerous, it can
issue an order to prohibit the sale, production for sale, ordering or importation of that
product into the Kingdom of Thailand, or prohibit the provision of the dangerous
service. The Committee on Safety can also order the business operator to rectify or
adjust the dangerous service or product, destroy or return it to the country of origin, as
the case may be.52
In the case where the Board, concerning safety, has ordered a temporary ban on
the goods or the services according to Section 29/8 Paragraph 2, when the Board,
concerning safety, considering the results of the test, finds that the goods or the services
are not dangerous, the Board, concerning safety, shall issue an order to revoke said

49
International Trade Administration, Prohibited and Restricted Imports, 2023.
50
Ibid.
51
https://www.inhousecommunity.com/article/amendment-consumer-protection-act/.
52
Ibid.
 88

order. In the case where the Board, concerning safety, considering the results of the test,
finds that said good is a dangerous and the danger from said good cannot be prevented
control on label, according to Section 30 or by other laws, or said service is dangerous,
the Board, concerning safety, shall prohibit the entrepreneur from producing for sale,
importing for sale, or selling the goods or stop the services. The Committee on safety
shall order the adjustment of or improvement on the goods or the services or for said
goods to be destroyed or returned to the country which exported the goods into the
kingdom, as deemed fit.53
On May 19, 2020, the Thai Ministry of Industry announced “Notification of
Ministry of Industry: List of Hazardous Substances (No.6) B.E. 2563 (2020) in the
Royal Gazette The list will come into effect on June 1, 2020, and the manufacture,
import, export and possession of Chlorpyrifos and Paraquat substances will be banned
under the framework of Hazardous Substance Act. Regarding the herbicides paraquat,
chlorpyrifos and glyphosate, the Ministry of Public Health had called for a ban due to
the concern for health effect. According to the Ministry of Industry notification
promulgated this time, paraquat and chlorpyrifos will be banned from June 2020
although glyphosate is allowed to use.54
In Myanmar, the Department of Commerce and Consumer Affairs has the
duties to implement the consumer rights and interests and to inform the consumers
about the protections in place. The Department can conduct research on consumer
protection and assign an inspector to investigate, to report any hazardous goods or
services or to remove any goods or services from the market. This inspector can also
be assigned to inspect areas in order to test the safety of goods or services. 55 The
Department of Commerce and Consumer Affairs shall prevent any significant situation
that may cause harm and loss to the consumers through the withdrawal of hazardous
goods from market, the prohibition of distribution of goods or the prohibition of
dangerous service.56 According to the decision of DOCA based on cases reported to it
under Rule 56 of the Consumer Protection Rules 2022.
When the inspectors from the Department of Consumer Affairs conducted
surveillance in the market, they found the product namely "Ye Zin" water bottle with

53
Section 29/9, Consumer Protection Act (No. 4) B.E. 2562 of Thailand, 2019.
54
Notification of Ministry of Industry of Thailand, List of Hazardous Substances (No.6) B.E. 2563,
2020.
55
Rémi Nguyen, Consumer Protection in Asia, Hart Publishing, 2022, p-204.
56
Sections 30 and 31, Consumer Protection Law of Myanmar, 2019.
 89

no attached labelling and endorsement from food and drug administration. Consumer
consume Ye Zin" water together with China seeds and milk powder to good health.
DOCA sent to FDA negotiation notice to seize these products from the market. The
inspectors from FDA surprise check in the market, they found these products without
labelling and endorsement, so that they noticed these products to ban within one weeks
and if they not obey the notice, the relevant authority will take action.57
And the Food and Drug Administration (FDA) issued a warning against 14 food
products after identifying hazardous substances and chemicals that are harmful to
health. Under the guidance of the Ministry of Health, FDA has been supervising the
market systematically to ensure the quality of products that are considered safe for
consumption. The 14 food products that can be found in markets and school canteens
were found to contain toxic substances, food dyes and prohibited chemicals. High doses
of food supplements can result in cancer, stomach, liver and kidney diseases. Those
products are energy drinks (Master brand), dried soya bean (999 brand), jam (Shwe Si
brand), Pineapple juice, tamarind juice, strawberry juice, lemon-lime juice, lychee juice
and red bull (Miba Myittar fruit juice brand), lime juice (ice lemon brand), shrimp paste
(Yadana brand), fermented bean paste (Oo brand), energy drinks (Power Bull brand)
and fruity drinks (Popsicle brand). Food manufacturers and distributors need to comply
with rules and regulations. They should avoid unauthorized food dyes and chemicals
used as food preservatives. Those violating rules and regulations will face action under
Section 28 (A) of National Food Law, Food and Drug Administration stated.58
Products recall and ban are important for product safety for consumers in every
country. Hazardous Products must seize from market as banned products. Recall and
Ban procedures will take in relevant Laws and Regulations.

3.3 Complaint by Consumer

Complaints are a window to consumer problems in the marketplace, but depend
on effective consumer education and awareness strategies. Complaints are early
indicators of what is going wrong and this is critical especially when products are
hazardous and cause harm not just to individual consumers but have the potential to
cause harm to a bigger group of consumers. The following avenues and mechanisms

57
Market Surveillance Case from Department of Consumer Affairs, 2024.
58
Global New Light of Myanmar dated on 24 July 2024.
 90

can be effectively used receive complaints in person at the office or during special
events/visits, telephone hotline, letters, emails, website; take down relevant information
about complaints, what recourse is preferred (refund, replacement, repair,
compensation, apology, etc); collect documents/samples; follow up action.59
In China, with the superior intent to reduce the high number of cases handled
by governmental hotlines and court proceedings over offline and online transactions
between merchants and consumers, the implementation rules introduce clear guidelines
on the obligations and the rights of each party. It is the duty of the relevant authorities
to accept and channel complaints from consumers who have been affected by unfair
market practices and sales policies. Where disputes over consumer rights and interests
arise between proprietors and consumers, they may be settled through filing a complaint
with the relevant administrative department. 60
They must also take steps to encourage employees and other informed third
parties to report illegal transactions that they become aware of. Complainants are
granted a seven-day period for the explicit receipt of the appeal, while relevant public
officers are allowed up to 60 days for their mediation with the seller. The new guidelines
also address the role and involvement of consumer rights associations and recognized
bodies in optimizing the handling of complaints and maximizing consumer satisfaction
with fair and equitable results. 61
In Thailand, the Consumer Protection Act established governmental
organizations such as the Consumer Protection Board (CPB) and the Ad Hoc
Committees consisting of the Committee on Advertisements, the Committee on Labels,
the Committee on Contracts and the Committee on Products and Services Safety. The
OCPB is a government agency attached to the Office of the Prime Minister. Its main
duties are to protect consumers in Thailand with respect to product advertising, product
labeling, and contracts, and to handle consumer complaints. However, there are
exceptions to the types of consumer complaints that the OCPB can handle. This is
because some consumer complaints must by law be handled by certain specialized
agencies. Examples of these exceptions include consumer complaints relating to health
products (food, drugs, cosmetics, medical devices, household dangerous substances,

59
UNCTAD, Product Safety and Labelling, 2015, p-63.
60
Article 39 (3), People's Republic of China Law on Protection of the Rights and Interests of
Consumers, 2014.
61
Hawks Ford, China’s new consumer rights rules: what retailers need to know (Article), 2024.
 91

and narcotics); medical services; insurance; pricing of consumer products;

condominium juristic person; public land; rail, water, and air transportation; tourism;
education; banking and finance; telecommunications; and electricity and water
consumption.62
The Consumer Protection Act provides protection in four main fields:
advertisements, labels, contracts and product safety. These main matters are primarily
supervised by special committees commissioned under the Act, save for being provided
otherwise in other laws. In cases where specific legislation directly governs such
matters (such as food or drugs), the Consumer Protection Act applies only insofar it is
not a repetition or contrary to those special laws.63
Under Thailand’s Consumer Protection Act, consumers can lodge complaints
in regard to matters such as unsafe products, false advertisements, and incorrect
labeling, for instance. The dispute may also occur in the event that the business operator
fails to meet the obligations in an agreement concerning the products and services.
Consumers may file legal action against the manufacturer, importer, or service provider
for damages incurred The Office of the Consumer Protection Board shall have powers
and duties to receive complaints from the consumers who suffer hardship or injury
resulting from the acts of the businessman for further submission to the Board.64
When a consumer complaint that the office can accept comes to the OCPB, the
officers first consider whether the business operator has violated any laws, in which
case the relevant authorities, such as the police, should handle the matter. When the
officers consider it appropriate, they may ask the parties to mediate the dispute.
Complaints in Bangkok are mediated by officers at the Bangkok OCPB. For complaints
lodged in other provinces, the governors of the provinces may assign officers or
agencies under their supervision to mediate.65
In addition to submitting complaints to the OCPB and FFC for dispute
settlement as mentioned above, consumers in Thailand could also now file a “consumer
case” in the Court of Justice, which performs as a “Consumer Court”, in accordance
with the provisions of the Consumer Case Procedure Act of 2008. This Act contains

62
Tilleke & Gibbins, How Thailand’s Consumer Protection Board Handles Consumer Complaints,
2022.
63
Aimpaga Techaapikun, Consumer Protection in Asia, Hart Publishing, 2022, p-273.
64
Section 20 (1), Consumer Protection Act of Thailand B.E. 2522 (1979) amended B.E. 2562 (2019).
65
Tilleke & Gibbins, How Thailand’s Consumer Protection Board Handles Consumer Complaints,
2022.
 92

many detailed provisions which aim to simplify and facilitate the procedural aspects of
bringing consumer claims and to reduce the burden on consumers. For example,
consumers can now file claims orally as well as in writing; consumers are exempted
from court fees and other charges in certain circumstances; cases must proceed on a
faster basis; the court will take a proactive inquisitional approach; the court is given
additional powers to issue protective injunctions; and the Act reverses the legal burden
of proof, which now lies with the business operators.66
In Myanmar, any consumer has the right to lodge a complaint either in person,
through nongovernmental consumer associations, by phone, per mail or email, or
through the DOCA website and Facebook. In 2022, in exercise of the power conferred
by Section 83(b) of the Consumer Protection Law (2019), Ministry of Commerce,
Department of Consumer Affairs hereby issues Directive No 2/2022 concerning
Consumer Complaints.67 If any of the aggrieved consumer; the family members of the
aggrieved consumer; the related person of the aggrieved consumer; the government
departments and organizations and the consumer protection associations or
organization wants to file the damage of the consumer, they may file the complaint to
the relevant Office in person or any form of the social media together with evidence.68
The Consumer Information and Complaints Centers (CICC) in the States,
Regions and the Union Territory will keep records of all consumer complaints and
submit monthly summaries of complaints information and statistics to the DOCA
Headquarters. All the complaints received and summary reports about the actions taken
during the previous month will be sent to the DOCA Headquarters with a specific
deadline. The head offices of DOCA in the States, Regions and the Union Territory are
also required to send regular reports about the actions taken on consumer complaints to
the DOCA Headquarters.69 The relevant Office shall carry out scrutinizing whether the
complaint is correct or not; ensuring the complete and correct complaints in case of
filing the incomplete or incorrect complaints and taking the record to take action
regarding the complaint by any form of the social media to ensure that the evidence is

66
The ASEAN Secretariat, Handbook on ASEAN Consumer Protection Laws and Regulations, 2nd
edition, 2021, p- 62.
67
Directive No 2/2022 issued by Ministry of Commerce, Department of Consumer Affairs.
68
Section 44, Consumer Protection Law of Myanmar, 2019.
69
Department of Consumer Affairs (Myanmar), Handbook on National Consumer Protection
Programme (NCPP), “Consumer Protection in ASEAN”,2021, p-15.
 93

complete and correct regarding the complaints filed under section 44. 70 The complaint
Form is provided in Consumer Protection Rules 2022 as Annex Form (2).
The CICC are required to submit the reports on the enquiries, complaints they
received and handled to the DOCA Headquarters, in accordance with the mandate of
the head offices in the States, Regions and the Union Territory. In order to disseminate
the information to consumers and to facilitate the lodging of complaints, the CICC will
be upgraded, if necessary.71
Consumer complaints made by vulnerable consumers with Complaint Form
under Consumer Protection Law. Relevant authority checks the document as evidence
the process matter and take sample. They inspect the situation in the market, if the
complaint is correct. They noticed the seller, unless the seller follow, they will take
action.

3.4 Settlement on Consumer Complaint

Member States should encourage the development of fair, effective, transparent
and impartial mechanisms to address consumer complaints through administrative,
judicial and alternative dispute resolution, including for cross-border cases. Member
States should establish or maintain legal and/or administrative measures to enable
consumers or, as appropriate, relevant organizations to obtain redress through formal
or informal procedures that are expeditious, fair, transparent, inexpensive and
accessible. Such procedures should take particular account of the needs of vulnerable
and disadvantaged consumers. Member States should provide consumers with access
to remedies that do not impose a cost, delay or undue burden on the economic value at
stake and at the same time do not impose excessive or undue burdens on society and
businesses.72
Fostering the development of effective, low-cost ways for consumers to resolve
disputes and obtain replacements or monetary compensation for losses sustained is a
key objective of all consumer protection systems. The particular features of consumer
disputes require tailored mechanisms that can provide consumers with access to

70
Section 45, Consumer Protection Law of Myanmar, 2019.
71
Department of Consumer Affairs (Myanmar), Handbook on National Consumer Protection
Programme (NCPP), “Consumer Protection in ASEAN”,2021, p-15.
72
Article 37, United Nations Guideline for Consumer Protection, 2016.
 94

remedies that do not impose costs, delays and burdens disproportionate to the economic
value at stake.
Consumer protection laws of different countries could provide for one or more
mechanisms for consumer dispute resolution and redress.
3.4.1 Administrative Action
Consumer protection laws could also grant statutory authority to government
officials to bring legal actions to protect consumers. 73
In China, the ‘three guarantees’ can be regarded as a local legal institution in
China. From the point of view of historical interpretation, the remedies for breach of
consumer contract in the Consumer Rights Law can be traced back to the provisions on
the so-called ‘three guarantees’, namely repair, replacement and return of goods.74
Repair, replacement and return are also remedies in the Consumer Rights Law.
The remedies for breach of contract are mainly stipulated in Articles 24, 41, 45, 48 and
55 of the Consumer Rights Law, including repairs, replacements, returns, damages
(punitive damages), and most are combined with the stipulation of damage
compensation in tort law. According to Article 24, if the goods or services provided by
sellers fail to meet the quality requirements, consumers may return them in accordance
with the provisions of the statute or as agreed upon by the parties, or require sellers to
fulfil their obligations of replacement or repair. If there are no special statutory
provisions or agreements between the parties, consumers may, within seven days of
receiving the goods, return them; and consumers may, if the statutory conditions for
rescission of a contract are met after the seven-day period, return them in a timely
manner, or, if not met, require sellers to fulfil their obligations of replacement or
repair.75
In Thailand, mechanism of consumer complaints handling mechanism is based
on mediation and prosecution. Under the Redress Mechanism, considering the facts
from the complainant, the Consumer Protection Board through its officials will initiate
the Preliminary mediation (consumer) by calling the business operator and the
consumer for mediation. In case the preliminary mediation fails the case will be referred
to the Sub-Committee on Complaint Scrutinization for further consideration.
Prosecution is based on Sub-Committee on Complaint Scrutinization decision, the

73
https://aseanconsumer.org/cterms-consumer-protection/dispute-resolution-and-redress.
74
Jin Jing, Consumer Protection in Asia, Hart Publishing, 2022, p-32.
75
Ibid, p-33.
 95

Consumer Protection Board’s will file a court case on behalf of the consumer without
any payment of government expense where the consumers shall be provided with
redress.76
Article 39 of the Consumer Protection Act B.E. 2522 (1979) provides the
Consumer Protection Board with the power to appoint a public prosecutor or an official
from the Office of Consumers Protection Board (OCPB) as the consumer protection
officer. The officer would have the authority to take legal action as assigned by the
OCPB for cases that are related to the violation of the rights of the consumers. In filing
a case in Court, the CP Officer has the power to sue for property or compensation on
behalf of the consumer, without chargeable service fee.
The OCPB can mediate twice within 90 days. If the parties still want to continue
with the mediation, a subcommittee of the Consumer Protection Board (CPB) the body
that directs the OCPB will then conduct two more mediation sessions within 90 days.
If a resolution is still not reached, the subcommittee can conduct one additional
mediation session before declaring the mediation failed and ending the complaint
process. At this point, if the CPB determines that the case involves a matter of public
interest (such as a case involving a product or service widely used by the public), the
CPB could proceed with filing a case on behalf of the consumer. However, if the CPB
declines to proceed in this manner, it would be up to the consumer to bring a case on
his or her own.77
If the mediation is successful, the officers then prepare a draft compromise
agreement for the parties to review and sign. Upon conclusion of the agreement, the
parties relinquish all prior relevant rights to make any claims against each other and
agree to be bound instead by the terms of the compromise agreement. If a party does
not comply with the terms, the CPB has the discretion to enforce the agreement. If the
mediation fails and the CPB believes that the business operator has violated the
consumer’s rights or any laws, and that further proceedings would be beneficial to
consumers as a whole, the CPB may appoint a public prosecutor or a legal officer to
initiate civil or criminal actions against the business operator on behalf of the
consumer.78

76
https://aseanconsumer.org/cterms-consumer-protection/dispute-resolution-and-redress.
77
Tilleke & Gibbins, How Thailand’s Consumer Protection Board Handles Consumer Complaints,
2022.
78
Consumers International, Road mapping Capacity Building Needs in Consumer protection in
ASEAN Country, Country Report – Thailand (Final), 2011, p-58.
 96

In terms of compensation for injury caused by defective products, sellers of

products are liable for any defect which impairs the value, fitness for ordinary purposes
or for the purposes of the sales contract under the principle of defect liability under
Section 472 of the Civil and Commercial Code of Thailand. Furthermore, consumers
who suffered damage to body, health, mind or property may seek compensation from
"business entrepreneurs” under the Liability for Damages Arising from Unsafe Product
Act of 2008 or commonly known as the Product Liability Act. Under the said Act, the
principle of strict liability applies to business entrepreneurs who are liable for any
damage caused by unsafe products, regardless of their intention or negligence .79
Although the above legal regimes recognize the importance of product safety
and provide remedies for consumers who suffered injury from unsafe products, there is
still no specific law which recognizes the right of the consumers to demand exchanges,
repairs or discount price for defective products or imposes a legal duty on product
sellers to provide quality assurance for a specific length of time. The Lemon Law Bill
is important to further enhance the protections offered to consumers.80
In Myanmar, according to the Consumer Protection Law-2019, any consumer
who is dissatisfied with unsafe goods or services which do not meet with the prescribed
quality or condition could make a complaint to Head Quarter Office in Nay Pyi Taw,
or through the DOCA Region or State Head Offices. The Law authorizes DOCA to
settle consumer disputes and impose administrative measures. In order to reinforce the
power of consumer protection institutions, lawmakers have modified the relevant
administrations, the Consumer Affairs Committees (CAC), consisting of
representatives from DOCA, relevant ministries and private sector organizations are
also able to settle consumer complaints by means of mediation if a consumer suffers
damages relating to goods or services.81
The Consumer Affairs Committee aims to solve disputes between entrepreneur
and consumer. The Committee can ask the inspector to investigate and examine the
goods or services that may cause substantial damage to consumers. Moreover, the
Committee should present the activities of the Committee to the Commission and

79
Section 5, Liability for Damages Arising from Unsafe Products Act of Thailand, 2008.
80
No and T Asia Legal Review, Enhancing Consumer Protection in Thailand: Overview of Proposed
Lemon Law Bill, 2024.
81
The ASEAN Secretariat, Handbook on ASEAN Consumer Protection Laws and Regulations, 2nd
edition, 2021, p-51.
 97

perform duties assigned by this latter. The Consumers Committee can handle the appeal
case of administrative penalty from the relevant department office.82
The Department shall settle the dispute between entrepreneur and consumer in
a fair and reasonable manner.83
The relevant department office can take actions by administrative method to
entrepreneurs who fail to comply with their duties and consumer rights84 such as
warning, requesting the repair or substitution of the product or to refund the value of
the loss.85 Therefore, the Committee can also require the entrepreneur to provide
compensation for damages, impose fines, prohibit the sale of disputed goods or services
for a limited period or, with the support of the government, suspend temporarily or
permanently the licence of the entrepreneur.86
In cases where the CAC conduct an investigation and found a violation from an
entrepreneur in the same aforementioned section and restrictions mentioned, it can
impose the following penalties: remedy for damages, fines, prohibitions of the sale of
goods that are in dispute within a limited period, and temporary or permanent
revocation of business license (in coordination with the relevant ministries).87
3.4.2 Civil and Criminal Action
Civil and Criminal Action is the act of bringing a lawsuit, prosecution, or
judicial proceeding to obtain some sort of legal remedy or to ascertain or protect a legal
right.
In China, according to Article 48 of the Consumer Rights Law, if the Consumer
Rights Law does not expressly stipulate, then the liability for breach of contract should
be governed by the general provision of Article 812 of the Civil Code: where the quality
fails to satisfy the agreement, the breach of contract damages shall be borne in the
manner as agreed upon by the parties. Where there is no agreement in the contract on
the liability for breach of contract, where such agreement is unclear, or where it cannot
be determined in accordance with the provisions of Article 510 of the Civil Code, the
damaged party may, in light of the nature of the subject matter and the degree of loss,

82
Rémi Nguyen, Consumer Protection in Asia, Hart Publishing, 2022, p-203.
83
Section 46, Consumer Protection Law of Myanmar, 2019.
84
Sections 21,24,25,27, Consumer Protection Law of Myanmar, 2019.
85
Section 52, Consumer Protection Law of Myanmar, 2019.
86
Rémi Nguyen, Consumer Protection in Asia, Hart Publishing, 2022, p-204.
87
The ASEAN Secretariat, Handbook on ASEAN Consumer Protection Laws and Regulations, 2nd
edition, 2021, p-51.
 98

reasonably choose to request the other party to bear the liabilities for the breach of
contract such as repairing, substituting, reworking, returning the goods, or reducing the
price or remuneration. Therefore, repair, replacements, returns (termination) and price
reduction constitute the system of remedies for breach of contract. Additionally, where
there is no clear sequence between different remedies, the parties need to make a
reasonable choice.88
Punitive damages in consumer contracts is an important legal institution in the
Consumer Rights Law and is an essential component of the 2013 amendment. The 2013
amendment of the Consumer Rights Law changes the double punitive damage to triple
punitive damage in cases of consumer contract fraud with the minimal compensation
threshold of RMB 500 in Article 55 of the Consumer Rights Law. Sellers, who
fraudulently provide goods or services shall, as required by consumers, increase the
compensation for consumers’ losses, and the increase in compensation shall be three
times the payment made by a consumer for the goods or the service or be RMB 500 if
the increase calculated before is less than RMB 500. In tort cases, Article 55(2) of the
Consumer Rights Law stipulates that when sellers knowingly provide consumers with
defective goods or services, causing death or serious damage to the health of consumers
or other victims, the victims have the right to claim punitive compensation no more
than two times the amount of losses incurred. In addition, in Article 55(1) there is an
exception. This exceptional regulation is in line with other provisions such as Article
148(2) of the Food Safety Law, which states that a consumer may require a producer of
food who fails to meet the food safety standards or a trader knowingly dealing in such
food to pay an indemnity of 10 times the price paid or three times the loss. If the amount
of the additional compensation is less than RMB 1,000, it shall be RMB 1,000, except
for a defect in the labels or instructions of the food which neither impairs food safety
nor misleads consumers. Although the Consumer Rights Law and the Food Safety Law
both stipulate compensation for punitive damages, they have different prerequisites:
fraud is the necessary precondition for punitive damages in the Consumer Rights Law,
but not under the Food Safety Law.89
In Thailand, violation of the rules or the orders of the Consumer Protection
Board and the Ad Hoc Committees may lead to criminal and administrative sanctions

88
Jin Jing, Consumer Protection in Asia, Hart Publishing, 2022, p-33.
89
Ibid, p-27.
 99

under the Consumer Protection Act. Even though the law imposes both imprisonment
and fines as possible punishments, in practice, a businessman breaking the rules,
notifications or orders will be fined rather than imprisoned. Although criminal and
administrative penalties are in place, the Consumer Protection Act does not contain a
provision relating to civil remedies. This means that a consumer whose rights have been
violated has to seek redress and compensation, if available, from another law indirectly
regulating the issue, such as the Civil and Commercial Code, the Consumer Cases
Procedure Act, the Product Liability Act, or even the Direct Sales and Direct Marketing
Act. Moreover, the Consumer Protection Act also founded a body to administer day-
to-day consumer protection affairs: the Office of the Consumer Protection Board. It has
the powers, and duties, inter alia, to oversee and receive complaints from consumers
and to encourage or conduct research on problems concerning consumer protection
issues.90
The adopted Consumer Case Procedure Act 2551 (2008) is an important
legislation with respect to handling disputes between consumers and business operators.
The Act contains both procedural and substantive provisions. 91
The Consumer Cases Procedure Act creates an expressway in the same pyramid
of justice by facilating consumers to fight for their rights. This law stipulates many
plaintiff-friendly provisions such as:
- The ability of the plaintiff to institute the proceeding orally or with the
assistance of a competent case official who will help plaintiffs in drafting their
claims and conduct discovery-like activities.
- Reducing the burden of proof of the plaintiff by simplifying the rules of
evidence.
- The ability to amend damages over time: where there is a physical injury, and
it is impossible to know the exact amount of actual damages when the judgment
is issued, the Court may provide in its judgment that the judgment may be
amended within a specified period (which may not exceed 10 years) to cover
any additional damages that become apparent during the specific timeframe.
- Introducing new types of damages and remedies awarded to consumers, such as
punitive damages or the right to repair and to replace the defective goods.186

90
Aimpaga Techaapikun, Consumer Protection in Asia, Hart Publishing, 2022, p-274.
91
Consumers International, Road mapping Capacity Building Needs in Consumer protection in
ASEAN Country, Country Report – Thailand (Final), 2011, p-59.
 100

As this law provides special rules which are different from the law on civil
procedure, there are some problems about the application of this law especially at the
beginning of the implementation.92
Prior to 2008, a person injured by a dangerous product or who had property that
was damaged by such product could claim for damages through either of two
conventional ways, namely contractual obligation or tort law. However, since the
introduction of the Product Liability Act, the victim has been equipped with the new
measure for claiming damages on the ground of strict liability pronounced by the new
legislation.93 Up to now, there is one Supreme Court ruling concerning product liability.
The case was conducted by the Consumer Protection Board on behalf of the consumer.
Due to the Court’s interpretation, the plaintiff still had a burden of proof because the
defendant had to first establish that the process of manufacturing had no defect or was
not unsafe. This duty of the plaintiff did not contradict Section 6 of the Product Liability
Act. This decision leads to the new challenges for consumers: how should the Thai
Court define the scope of the burden of proof.94 In order to have an entrepreneur’s
liability according to Section 5, the injured person or his/her representative as specified
in Section 10 has to prove that he/she suffers from damages caused by the
entrepreneur’s products and the usage or preservation of such products is by its nature.
It is, however, unnecessary to prove which entrepreneur causes such damage.95
In Myanmar, the Department shall collaborate with the government
organization for the safety of goods or service and can take legal action if the
entrepreneur fails to comply with the provisions of the Consumer Protection Law 2019
and the Department can sue under criminal procedure. The Department may sue the
person who is punished with the administrative order under section 53 for a criminal
action if he fails to abide by such order.96 The enactment of the Consumer Protection
Law 2019 is an excellent opportunity to modernise Myanmar private law such as the
Contract Act 1872 and the Sale of Goods Act 1930. As a matter of fact, the Consumer
Protection Law 2019 protects the consumer but also the weak party in its legal
relationship with the entrepreneur. In practice, local people are not overzealous in
drafting an agreement concerning the formation and the performance of their

92
Aimpaga Techaapikun, Consumer Protection in Asia, Hart Publishing, 2022, p-293.
93
Ibid, p-283.
94
Ibid, p-286.
95
Section 6, Liability for Damages Arising from Unsafe Products Act of Thailand, 2008
96
Section 75, Consumer Protection Law of Myanmar, 2019.
 101

obligations. Hence, the modernization of the Contract Act 1872 and Sale of Goods Act
1930 could move toward the direction of protecting the weak party in any contract. In
a more comprehensive way, the Consumer Protection Law 2019 could also support the
creation of a Civil Code in Myanmar in order to harmonize the different laws relating
to civil law.97 Any person who is convicted under Consumer Protection Law may also
be sued a civil action by the aggrieved consumer for his damage.98
The Myanmar Contract Act 1872 may be used in order to protect the consumer.
Before signing any purchase contract, the free consent of parties is an essential element
to turn an agreement into a valid contract. Without free consent, the contract cannot
legally be enforced before the courts. Consent can be defined as an act of reason,
accompanied with deliberation, the mind weighing the good or evil on each side. Free
consent means that a person has to conclude a contract out of their own will or volition.
Under Section 14 Myanmar Contract Act, consent is said to be free when it is not caused
by coercion, undue influence, fraud, misrepresentation or mistake, subject to some
provisions. A person to whom money is paid or anything delivered by mistake or under
coercion must repay or return what was received. Consent is invalid when it would not
have been given but for the existence of such coercion, undue influence, fraud,
misrepresentation or mistake. If the contract is entered into by coercion, undue
influence, fraud, misrepresentation or mistake, one party can claim compensation for
any loss and damage resulting from the non-performance or the breach of the contract.99
Under the Myanmar Sale of Goods Act 1930, some legal mechanisms could be
used in order to protect a consumer. Normally, the seller does not provide any implied
condition or warranty for the quality or fitness of goods but there are exceptions, which
are presumed by law and impose implicit conditions on a seller for any default in the
goods that are being sold by him. This is an exception to the rule of caveat emptor.
Damages for non-delivery may be claimed where the seller wrongfully neglects or
refuses to deliver the goods to the buyer, the buyer may sue the seller for damages for
non-delivery. Where a condition is breached, the buyer may reject the goods and treat
the contract as repudiated. Moreover, damages can also be claimed for breach of
warranty.100

97
Rémi Nguyen, Consumer Protection in Asia, Hart Publishing, 2022, p-208.
98
Section 76, Consumer Protection Law of Myanmar, 2019.
99
Rémi Nguyen, Consumer Protection in Asia, Hart Publishing, 2022, p-191.
100
Ibid, p-192.
 102

Complaints can be solved by so many disputes resolution such as mediation,

arbitration, refund, replace, repair. If the relevant authorities cannot take administrative
action. They can take civil and criminal action under relevant specific Laws.
In conclude that, market surveillance, product recall and product ban are
important activities in post market for product safety. If any dispute arises between
manufacture and consumers. Consumers also can complaint to relevant authorities to
get compensation. The relevant authorities resolve by means of administrative action.
They cannot take administrative action; they can proceed civil and criminal action
behalf of consumers. Another important matter is price control mechanism in market
for consumers. In this situation, price cannot control in every market. That is not matter,
if the price control law was already enacted. If not, the relevant authorities need to adopt
regulations to control the price.