For the purpose of economic prosperity and safety of its citizens, many countries have broad laws that protect consumers and regulate how companies operate their businesses. The goal of these laws is to provide an equal playing field for similar businesses that operate in a specific industry while preventing them from gaining too much power over their competitor. Simply put, they stop businesses from playing dirty in order to make a profit. Capitalism makes it a free for all, while in the process stifling the emergence of other businesses. Thus, to safeguard against these, the antitrust laws have emerged to curb these menace.
The lack of a comprehensive legal framework governing competition issues in Nigeria has arguably led to artificial scarcity of high valued goods and services, the creation of inferior products, restrictive practice, less innovation, and anti-competitive behavior such as price fixing, amongst others. Monopoly is often demonstrated by manufactures or businesses in form of market allocation, bid rigging and price fixing. It was on the back heel of these consumer unfriendly practices that the Nigerian President Muhammadu Buhari, on the 6th of February, 2019 signed, the Federal Competition and Consumer Protection Bill into Law as the; Federal Competition and Consumer Protection Act, 2019.
Legal Regime for Consumer Protection
Prior to the enactment of the Federal Competition and Consumer Protection Act (“FCCPA”) 2019, it was the Consumer Protection Act that had a restrictive protection of consumers. However, the FCCPA broaden the extent of the protection and even establishes the Federal Competition and Consumer Protection Commission as well as the Consumer Protection Tribunal to try violations of the provisions of the Act.
The major aim of the Act is to promote economic efficiency, maintain a competitive market in the Nigerian economy, protect the Nigerian economy, protect the interest and welfare of consumers by providing consumers with wide variety of quality products at competitive prices as well as prohibit restrictive or unfair business practices in the Nigerian economy. The emergence of Multibillion Naira companies in the shipping, telecommunication, aviation, oil and gas, etcetera has precipitated the enactment of the Act. Thus, it can be safely noted that from the enactment of this law, consumers will, to a large extent, be granted respite from unfair and unjust practices by big businesses as the activities of these industries will constantly be monitored and regulated by the Commission to ensure adequate compliance to the provisions of the law.
Core Functions of the Commission
The Act establishes the Federal Competition and Consumer Protection Commission to among other duties perform the under listed functions stated as follows:
(a) initiate broad based policies and review economic activities in Nigeria to identify anti-competitive, anti-consumer protection and restrictive practices which may adversely affect the economic interest of consumers and make rules and regulations under this Act and any other enactment with regards to competitions and protection of consumers;
(b) advise the Federal Government generally on national policies and matters pertaining to all goods and services and on the determination of national norms and standards relating to competition and consumer protection;
(c) report annually on market practices and the implications for consumer choice and competition in the consumer market;
(d) eliminate anti-competitive agreements, misleading, unfair, deceptive or unconscionable marketing, trading and business practices;
(e) resolve disputes or complaints, issue directives and apply sanctions where necessary;
(f) create public awareness through seminars, workshops, studies and make available information with regard to the exercise of its powers and performance of its functions to the public;
(g) regulate and seek ways and means of removing or eliminating from the market, hazardous goods and services, including emission, untested, controversial, emerging or new technologies, products or devices whatsoever, and cause offenders to replace such goods or services with safer and more appropriate alternatives;
(h) publish, from time to time, list of goods and services whose consumption and sale have been banned, withdrawn, restricted or are not approved by the Federal Government or foreign governments;
(i) encourage trade, industry and professional associations to develop and enforce in their various fields quality standards designed to safeguard the interest of consumers.
FCCPA Competition and Merger Control
The law prohibits restrictive agreements and abuse of a dominant position and provides for stiff penalties for contravention of its provisions. It also introduces a new regulatory landscape with respect to merger control in Nigeria. It repealed Sections 118 – 128 of the Investment and Securities Act, Cap 124, Law of the Federal Republic of Nigeria. The provisions repealed had erstwhile made provision regarding mergers in Nigeria. It also repeals the Consumer Protection Council Act Cap C25 Laws of the Federation of Nigeria 2004
The FCCPA provides that its provisions would override the provisions of any other law, apart from the Constitution in all matters relating to Competition and Consumer Protection and the Commission would have precedence over and above any other regulator in matters or conducts which affect competition and consumer protection. Furthermore, the FCCPA directs the Commission to negotiate agreements with all government agencies whose mandate includes enforcement of competition and consumer protection in order to co-ordinate and harmonizes the exercise of jurisdiction over competition and consumer protection matters within the relevant industry or sector. By the provision of the Act, unfair, misleading practices and certain agreement that impede competition are punishable. Furthermore, the Commission established pursuant to the Act will facilitate access by all citizens to safe products, secure the protection of rights for all consumers in Nigeria. It strips the Securities and Exchange Commission of its power to approve mergers transactions on the Competition Commission.
The enactment of the FCCPA would help promote economic competitiveness in the country and deepen the framework for encouraging and supporting small and medium scale businesses. Having the laws in statute books alone will definitely not solve the problem but vigorously ensuring that compliance with the provisions of the law is observed to the letter. By so doing, Nigeria will position itself towards having an open market which is essential to have a prosperous economy. Through consumer protection, the government ensures that consumers derive maximum satisfaction from the services available in the market.
Aririahusim Ikechukwu is a legal Practitioner based in Lagos in the Law Firm of Peach and Bonds LP located at Victoria Island, Lagos.