Reforming State Consumer Protection Liability: An Economic Approach

Abstract

State Consumer Protection Acts (CPAs) were adopted in the 1960s and 1970s to protect consumers from unfair and deceptive practices that would not be redressed but for the existence of the acts. In this sense, CPAs were designed to fill existing gaps in market, legal, and regulatory protections of consumers. CPAs were designed to solve two simple economic problems: (1) individual consumers often do not have the incentives or means to pursue individual claims against mass marketers who engage in unfair and deceptive practices; and (2) because of the difficulty of establishing elements of either common law fraud or breach of promise, those actions alone are too weak an instrument to deter seller fraud and deception. The most striking lesson of our analysis is that the typical state CPA—with relaxed rules for establishing liability, statutory damages, damage multipliers, attorneys’ fees and costs, and class actions—solves the basic economic problem that CPAs were intended to address several times over. The effect of this redundancy is that CPAs can deter the provision of valuable information to consumers and, thus, harm consumers. That is, as currently applied, state CPAs harm consumers. This need not be the case. A few modest reforms would dramatically improve the impact of CPAs on consumer welfare.