Consumer Protection in the Hispanic Community
The burgeoning U.S. Hispanic population, a $928 billion annual spending demographic, is being targeted with marketing messages from businesses large and small.1 Wal-Mart alone spends $60 million a year reaching out to this population.2 However, people who speak English as a second language, or who cannot read English at all, are particularly disadvantaged in reviewing and understanding English language agreement terms for everything from payday loans to cell phone service contracts to automotive purchases. The problem in Florida increases as the Hispanic population continues to grow. The percentage of Floridians who speak Spanish at home has grown from 12.1 percent in 1990 to 17.9 percent in 2004.3 Because the Spanish speaking population represents a consumer market that is increasingly targeted by companies for goods and services, it is important that the language of the marketing matches the language of the disclosures.
With this marketing outreach in foreign languages, disclosures and contracts are often in English, enhancing the risk of economic overreaching or outright fraud. The Federal Trade Commission (FTC) has determined that Spanish speakers are more likely to be victims of fraud and less likely to report fraud to authorities than English speakers.4 Legal commentators are well aware of these issues, and have spent more than a decade discussing and proposing solutions to address the growing problem of business fraud that can occur when businesses advertise and transact business in a language other than English.5
Case law is historically not favorable to consumers, as courts have been reluctant to relieve consumers from the written terms of their contracts, even consumers who do not read English. Foreign language speakers across the country have had to search for relief in the patchwork of consumer protection law and from the FTC from deceptive and unfair trade practices. In light of the incomplete protection afforded under federal law, the relief a consumer can receive varies significantly based on the regulatory protection available at the state level.
This article provides an overview of a number of types of laws that attempt to address this problem, and the case law regarding foreign language speakers that so often runs counter to the precepts of Florida’s consumer protection laws. It also provides a review of the past regulation of this area in Florida, including a review of Florida’s historical administrative rule which addressed required disclosures when advertising in a language other than English. This article will help attorneys and consumers prevent and fight deceptive marketing and sales practices against foreign language speakers in Florida.
Existing Consumer Protection Laws
Virtually all of the law in Florida protecting foreign language speakers is derived from FTC regulations and decisions, incorporated into Florida’s deceptive and unfair trade practice law by F.S. §501.203(3)(a). As discussed below, this federal authority forms a spotty patchwork that makes it difficult for lawyers, consumers, and business owners to determine the extent and scope of the law.
• Specific FTC Foreign Language Disclosure Rules — There are a limited number of FTC rules which directly require that, where marketing has been made in a foreign language, certain disclosures must also be made using the same foreign language. For example, companies making at-home sales are required to give consumers a copy of any fully completed receipts and contracts in the language in which the sale was primarily made.6 The FTC’s rule regarding used car sales requires that, where a sale has been made in Spanish, the mandatory window forms and contract disclosures must be in Spanish.7
While these rules provide for extensive disclosure in foreign languages, there are very few of these regulations, and they do not apply to many common categories of consumer transactions.
• Clear and Conspicuous Disclosure Rules — There are a plethora of FTC consent orders, rules, guides, and other statements which require “clear and conspicuous” disclosure of information in advertising and marketing. Where such obligation exists, and advertising is made in a foreign language, the FTC requires that such required disclosures also be made in the language principally used in the advertising:
(a) Where cease-and-desist orders as well as rules, guides and other statements require “clear and conspicuous” disclosure of certain information in an advertisement or sales material in a newspaper, magazine, periodical, or other publication that is not in English, the disclosure shall appear in the predominant language of the publication in which the advertisement or sales material appears. In the case of any other advertisement or sales material, the disclosure shall appear in the language of the target audience (ordinarily the language principally used in the advertisement or sales material).8
Because violations of the FTC rules may form the basis for violations of FDUPTA under F.S. §501.203(3)(a), it is important for attorneys representing foreign language speakers, and counsel representing companies using foreign languages in their marketing, to determine whether any FTC consent order, rule, guide, or other statements apply to the transactions in question. Given the FTC’s somewhat inconsistent regulation of industries, this is often easier said than done.
A number of the FTC rules which require “clear and conspicuous” disclosure of terms are of extremely limited focus but may prove useful to attorneys representing foreign language speakers in particular types of consumer transactions. For example, in any sale involving a rebuilt automobile, the seller must clearly and conspicuously disclose that the vehicle is rebuilt and/or that it contains used parts.9 Under 16 C.F.R. §14.9(a), if the advertising and/or sales presentations made regarding a rebuilt car are made in a foreign language, the required written disclosures must also be “clearly and conspicuously” disclosed in that same foreign language.10
Other FTC rules have much broader application, such as the regulations prohibiting deceptive telemarketing acts or practices.11 That rule contains a long list of information that must be “clearly and conspicuously” disclosed in telemarketing transactions, including:
(a) The total costs to purchase, receive, or use, and the quantity of, any goods or services that are the subject of the sales offer;
(b) All material restrictions, limitations, or conditions to purchase, receive, or use the goods or services that are the subject of the sales offer;
(c) If the seller has a policy of not making refunds, cancellations, exchanges, or repurchases, a statement informing the customer that this is the seller’s policy; or, if the seller or telemarketer makes a representation about a refund, cancellation, exchange, or repurchase policy, a statement of all material terms and conditions of such policy;
(d) If the offer includes a negative option feature, all material terms and conditions of the negative option feature, including, but not limited to, the fact that the customer’s account will be charged unless the customer takes an affirmative action to avoid the charge(s), the date(s) the charge(s) will be submitted for payment, and the specific steps the customer must take to avoid the charge(s).
Under 16 C.F.R. §14.9(a), where the telemarketing is conducted in a foreign language, these disclosures must be made in the foreign language as well. Pursuant to F.S. §501.203(3)(a), this rule would also apply as part of Florida’s deceptive and unfair trade practices act.
The collection of FTC “clear and conspicuous” disclosure rules is helpful to consumers, but it suffers from at least two defects. First, the rules apply only to limited categories of consumer transactions affecting foreign language speakers. Second, these rules often only require that certain specific disclosures be made in the foreign language, but not all material terms must be disclosed in the foreign language. For example, the “clear and conspicuous” disclosure requirements regarding the sale of franchises only requires an admonition that “a new franchisee’s individual financial results may differ from the result stated in the financial performance representation.”12 Hence, that particular disclosure must be made in the foreign language, but other material information may not have to be translated for the consumer under the rule.
• FTC Cases Involving Foreign Language Sales — In spite of its patchy regulatory treatment of foreign language consumer transactions, the Federal Trade Commission has had a consistent view of the treatment of foreign language speakers. In consent orders dating back to the 1970s, the FTC has asserted the position that if a company advertised in Spanish and had sales representatives make oral presentations in Spanish, the company had to “provide customers with contracts, booklets, credit cost disclosures, and other mandated written disclosures printed in English and Spanish.”13 The earliest of these cases involved a group of New York City retailers that had made a practice of catering to the burgeoning New York Hispanic population by advertising in Spanish and making sales in Spanish.14
The fundamental point about these cases is that there is no allegation that the consumers were being lied to about the contents of the contracts, or that material information was withheld. The FTC’s finding that the companies had engaged in unfair methods of competition was based solely upon the fact that they had systematically advertised and made sales presentations to customers in Spanish, but gave the Spanish-speaking customers contracts in English. These cases indicate that the FTC has long held the position, now encompassed in 16 C.F.R. §14.9(a), that disclosures which are important enough to require “clear and conspicuous” disclosure must be made in the language of the advertisement.
The FTC cases described above involved companies that advertised and made sales presentations to customers in Spanish, but the requirement to provide translated disclosures might exist where only one of these activities has occurred. In J. Kurtz & Sons, Inc., 87 F.T.C. 1300 (1976), there was no assertion that the retailer had advertised in Spanish, only that the retailer’s sales staff had made oral sales presentations in Spanish to customers who only spoke and read Spanish, and that the oral sales pitches did not include all the terms and conditions of the contract. The result was the same, i.e., the retailer was found to have engaged in deceptive and unfair sales practices, and was required to give its customers contracts and other disclosure documents in Spanish where sales presentations were made in Spanish.
In these cases, the FTC appears to focus more on the retailers’ conduct than on the customers’ proficiency in English. In J. Kurtz and Sons, the customers spoke “only the Spanish language.”15 In four prior cases, the customers either spoke only Spanish or were those “whose predominant language is Spanish.”16 This provides a much simpler basis for businesses trying to decide whether they need to translate documents, since it depends on the business’ actions in a foreign language and not on the language skills of the consumers.
• Non-mandatory Federal Regulations and Guidelines — In addition to the discrete and limited mandatory foreign language disclosures required by the FTC regulations and consent orders, there are a number of federal regulations that permit, but do not require, translation of disclosures into foreign languages. For example, Regulation Z of the federal Truth in Lending Act provides, in pertinent part, that: “[d]isclosures required by this regulation may be made in a language other than English, provided that the disclosures are made available in English upon the consumer’s request.”17
In another example, the federal Food and Drug Administration (FDA) has issued mandatory disclosure regulations governing direct-to-consumer advertisements of prescription drugs.18 In order to assist the pharmaceutical industry in complying with those regulations, the FDA has issued “Guidance for Industry” papers. One such guidance paper recommends that when direct-to-consumer advertising is made in a foreign language, the required disclosures should also be made available to consumers in a variety of media formats in such foreign languages, stating:
When a broadcast advertisement is presented in a foreign language, the information sources that are part of the advertisement’s “adequate provision” mechanism (i.e., print advertisements or brochures, [W]eb sites, toll-free telephone number recorded messages or operators) should be in the language of the broadcast ad. Regardless of the language used for the advertisement, current broadcast advertising regulations require the dissemination of approved product labeling, which, in most cases, must be in English, and is generally written in language directed to healthcare professionals. The Agency strongly encourages sponsors to consider the benefits of also providing consumers with nonpromotional, consumer-friendly product information in the language of the broadcast ad (e.g., FDA-approved patient labeling or accurate, consumer-friendly translations of product labeling information).19
The FDA guidance papers make it clear that they do not create legally enforceable rights or responsibilities, and represent the agency’s current thinking on procedures to fulfill the product information disclosure requirements. Obviously, these recommendations by federal agencies are helpful to protect foreign language consumers, but the fact that the recommendations are not mandatory requirements will certainly leave gaps in implementation.
State Court Law on Contracts When Language Is a Barrier
In light of the limited patchwork of protections afforded under federal law, the inevitable question is whether Florida contract and consumer protection law provides any additional protection to foreign language speakers. The brief answer is “no.”
In Florida, foreign language speaking consumers are not exempt from the general maxim that, absent fraud and other extraordinary circumstances, they are bound by the clear and unambiguous terms of contracts that they sign, regardless of whether the consumer actually understood what they were signing. Florida courts have generally held that the fact a consumer is illiterate, or does not speak English, does not excuse the consumer, and courts have generally placed the burden on the consumer to find someone to translate the contract.20
There are a limited number of recognized exceptions to the “duty to read” cases. In addition to misrepresentation, a consumer may be excused from the general rule in which they are able to “shows facts indicating circumstances which prevented [their] reading it,” such as in John Deere Industries Equipment Co. v. Roberts, 362 So. 2d 65, 67 (1st DCA 1978). These facts may include deception or fraud as to the terms of the contract on the part of the salesperson.21
However, these cases do not address the increasingly typical market transaction where a consumer receives foreign language advertisements, sees signs that advertise the availability of foreign language sales people, transacts business in a foreign language, and then receives all contract documents and disclosures in English. An argument could be made that earlier FTC consent orders establish a standard of unfairness and deception and would, thus, violate Florida’s Deceptive and Unfair Trade Practice Act pursuant to F.S. §501.203(3)(b).
Some courts in other states have found that engaging in sales in Spanish and then having the customers sign a contract written in English that contains different figures and representations constitutes a deceptive act. For example, a New Mexico state court in United States v. Castillo, 120 F. Supp. 522, 523 (D.C.N.M. 1954), held that the lender represented orally in Spanish that the interest rate was only 10 percent although the promissory note written in English said that it was 36 percent.
However, a court is unlikely to find that a deceptive or unfair trade practice has occurred where a sales pitch is made completely in English to consumers that the salesman knows do not speak English. An Arizona court in Teran v. Citicorp Person-to-Person Financial Center, 146 Ariz. 370, 376 (Ariz. App. 1985), held that even though the contracts were not explained to the customers in Spanish, no deceptive act occurred. In this case, a Spanish-speaking employee of a home insulation company accompanied consumer borrowers to the Citicorp offices. The Citicorp employees spoke only in English and provided English contracts to the consumers, although they knew the consumers only spoke Spanish. Specifically, the terms of the contract were within normal business practice parameters and no other misconduct by Citicorp took place.22 Implicit within the facts of this case was that Citicorp was not conducting business in Spanish in any way, but did not turn away non-English speaking borrowers who brought their own interpreter. It is likely important to the result in this case that no conversations occurred in Spanish between the customers and Citicorp’s agent, nor was there any claim of misrepresentations by Citicorp’s agent.23
A New York State court in Frostifresh Corp v. Reynoso, 274 N.Y.S. 2d 757, 758 (1966), reversed as to the calculations for damages, but upheld as to unconscionability at Frostifresh Corp. v. Reynoso, 281 N.Y.S. 2d 964 (1967), found that an unconscionable transaction occurred when a Spanish-speaking customer was charged nearly $1,145.88 for an appliance that would normally sell for only $348. The court noted that although the seller negotiated orally in Spanish, he presented the customer with a contract written entirely in English after misstating in Spanish that the appliance would be free to the consumer.24 Further, the contract was not translated or explained to the customers.25 The court opined that the customers were “handicapped by a lack of knowledge, both as to the commercial situation and the nature and terms of the contract which was submitted in a language foreign to them.”26
Florida’s Historical Foreign Language Consumer Protection Rule
The Florida Deceptive and Unfair Trade Practices Act, first passed in 1973,27 brought about the first foreign language rule promulgation in March 1974.28 Noted in Steven Bender’s 1996 law review article as one of the broadest in the nation, and as an example of an exception to the duty to read, the rule required advertising disclosures to be in the language of the advertisement, and for contracts to be provided in the language of the transaction.29
The text that was in effect for more than 20 years provided:
Language Other than English;
(1) It shall be an unfair or deceptive act or practice to disseminate any advertisement without including therein all required disclosures or limitations on the offer in the language principally used in the advertisement.
(2) it shall be an unfair or deceptive act or practice to, except as provided herein, execute any document which is written in English and signed by the consumer when the consumer transaction to which said document relates has been negotiated principally in a language other than English; however, a supplier shall not be required to provide a translation when fewer than 5 percent of all consumer transactions which occur at a single business location are negotiated principally in the language into which documentation would otherwise have to be translated. Nothing herein shall be construed to condone an unconscionable transaction intended to deceive the consumer. In complying with this subsection, a document executed in a consumer transaction shall be written in the language principally used in the negotiating of the consumer transaction; however, this requirement may be met by furnishing the consumer, prior to the execution of the documents, a written translation of the document in the language principally used in negotiating the consumer transaction. Said translation shall be furnished on a separate piece of paper which clearly identifies the supplier and the consumer transaction and states the following, clearly and conspicuously in the language of the translation:
“READ THIS FIRST”
This is a translation of the document that you are about to sign:
Whenever a translation into a language other than English shall be required by the subsection, the supplier shall be obligated to provide the consumer a translation of the document accurately reflecting the substance of the document.
This subsection shall not apply to:
(a) any document executed by the consumer pursuant to an existing revolving account agreement or retail installment sales contract if the existing revolving account agreement or retail installment sales contract was executed prior to the effective date of this section;
(b) any registration or license required by law to be executed by the consumer;
(c) delivery receipts, or cash sales receipts;
(d) any document relating to a consumer transaction involving a purchase price of less than $150.30
However, in spite of the broad language of the regulation, there are no reported decisions referencing this rule, and the rule was repealed in 1996. Its repeal was part of a sweeping deletion of over 5,000 Florida regulations that took place in 1995 and 1996.31 The purge was made at the behest of then Gov. Lawton Chiles to remove rules which were “outdated, duplicative, unnecessary, or ill-advised.”32 Although it is unclear how the “Language Other than English” rule met the standard for repeal, the agency’s 20-year failure to litigate and enforce the rule may have played some part in its demise.
Since that time, the Florida Attorney General’s Office has entered into several settlement agreements that address foreign language advertising, most notably with Ford Motor Company, which agreed to provide Spanish language owner’s guides if Ford advertised in Florida in Spanish.33 Additionally, the attorney general reached an assurance of voluntary compliance with Echostar, the parent company of Dish Network, where the company agreed to provide Spanish language contracts and customer service when advertising in Spanish.34 These Florida settlement agreement provisions generally reflect the consent order positions of the Federal Trade Commission dating back to the 1970s.35
Conclusion
Responding to the problems that arise in translation for consumer transactions is not a new issue. In Florida, the increasing amount of Spanish language marketing creates disclosure responsibilities for businesses that advertise or make sales presentations in Spanish and other foreign languages. Companies advertising in languages other than English need to be cognizant of their responsibilities to make all pertinent disclosures in the same language as the advertisement. For some retailers, compliance may be as simple as providing dual language refund policies on sales receipts. For retailers with consumer contracts that provide disclosures on everything from mandatory arbitration to early cancellation penalties, more extensive translations may be required. Each business advertising in a foreign language must evaluate sales materials disclosures based on its individual circumstances, but a simple rule is: If it is important enough to be disclosed in English, it is important enough to be disclosed in the foreign language.
Consumer law regarding required translations when advertisements are made in a foreign language is unsettled, primarily because of the dearth of case law addressing this common practice. The author hopes that the legal summary in this article has provided practitioners with assistance for guiding their clients on this important and evolving topic of advertising and consumer protection law.
1 Cynthia Gorney, How Do You Say “Got Milk” en Espanol?, 58 New York Times Magazine 58-60 (September 23, 2007).
2 Id. at 60.
3 1990: www.census.gov/Press-Release/www/2002/dptables/90smp12.xls; 2004: www.census.gov/mp/www/cpu/fact_of_the_day/006804.html.
4 FTC Staff Report, Consumer Fraud in the United States: An FTC Survey (August 2004), www.ftc.gov/reports/consumerfraud/040805confraudrpt.pdf.
5 Steven Bender, Consumer Protection for Latinos: Overcoming Language Fraud and English Only in the Marketplace, Amer. Univ. L. Rev. (1996); Julian S. Lim, Tongue-tied in the Market: The Relevance of Contract Law to Racial-Language Minorities, 91 California L. Rev. 579 (2003); David A. Warren, Car Trouble: Some Help for the Uninformed Buyer, 66 Ohio State L. J. 441 (2005); Patricia S. Abril, Acoustic Segregation and the Hispanic Small Business Owner, 10 Harvard Latino L. Rev. 1 (2007).
6 16 C.F.R. §429.1; see also 16 C.F.R. §308.5 (regarding required disclosures in pay per call industry); and 16 C.F.R. §642.3 (regarding required disclosures in credit and insurance sales offers).
7 16 C.F.R. §455.5.
8 16 C.F.R. §14.9(a).
9 16 C.F.R. §20.1.
10 See also 16 C.F.R. §436.9 (requiring clear and conspicuous disclosure that franchise opportunity may yield different financial results than advertised examples); 16 C.F.R. §437.1 (requiring clear and conspicuous disclosure of certain information to purchaser of business opportunity).
11 16 C.F.R. §310.3.
12 16 C.F.R. §436.9.
13 Grand Spaulding Dodge, Inc., 90 F.T.C. 406 (1977).
14 J&J Furniture Corp., 87 F.T.C. 383 (1976); Almacenes Hernandez Corp., 87 F.T.C. 400 (1976); Weil & Co., Inc., 87 F.T.C. 406 (1976); Busch’s Jewelry Co,. Inc., 87 F.T.C. 394 (1976).
15 Id.
16 Id.
17 12 CFR §226.27 (emphasis added).
18 21 U.S.C. §352(n); 21 C.F.R. §202.1.
19 Center for Drug Evaluation and Research, Center for Biologics Evaluation and Research & Center for Veterinary Medicine, Guidance for Industry Consumer-directed Broadcast Advertisements (August 1999), available at www.fda.gov/cder/guidance/1804fnl.htm.
20 Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Benton, 467 So. 2d 311 (Fla. 5th D.C.A. 1985); Rivero v. Rivero, 32 Fla. L. Weekly D 2103 (Fla. 3d D.C.A. July 18, 2007).
21 John Deere, 362 So. 2d 65, 67 (Fla. 1st D.C.A. 1978).
22 Teran, 146 Ariz. 370, 376 (Ariz. App. 1985).
23 Id. at 373.
24 Frostifresh, 274 N.Y.S. 2d 757, 758 (1966); reversed as to the calculations for damages, but upheld as to unconscionability at Frostifresh Corp. v. Reynoso, 281 N.Y.S. 2d 964 (1967)
25 Id.
26 Id. at 759.
27 Ch. 73-124.
28 F.A.C. Rule 2-9.06.
29 Bender, Consumer Protection for Latinos at 1045; F.A.C. Rule 2-9.005.
30 F.A.C. Rule 2-9.005 (repealed).
31 Rossi, The 1996 Revised Florida Administrative Procedure Act: A Survey of Major Provisions Affecting Florida Agencies, Florida State Univ. L. Rev. 287 (Winter 1997); see also Chiles, On Rules Reduction and Rational Executive Branch Reform, 71 Fla. B. J. 16 (March 1997).
32 Chiles, On Rules Reduction at 16.
33 Department of Legal Affairs v. Ford Motor Company, Case No. 02CA-3087 (Fla. 2d Cir.).
34 In re: Echostar/Echosphere, AG Case No. L02-3-1523.
35 See, e.g., In the matter of Grand Spaulding Dodge, 90 F.T.C. 406 (1977); In re J. Kurtz & Sons, Inc., 87 F.T.C. 1300 (1976).
Lisa M. Raleigh is a special counsel in the complex litigation unit of the Florida Attorney General’s Office. She is the immediate past-chair of The Florida Bar’s Consumer Protection Law Committee.
This article is submitted on behalf of the Consumer Protection Law Committee, chair, Laura J. Boeckman.
