Vulnerability within EU Consumer Law
How to protect vulnerable consumers is one of the key issues of our time. The European ideal of a well-informed, observant and circumspect consumer that can reap the benefits of the integrated market made it necessary to recognise the needs of specifically vulnerable consumers. However, while EU strategic papers recognise the personal, situational and socio-economic dimensions of vulnerability, the actual legal instruments either recognise vulnerability in relation to economic exclusion – to ensure the poor have access to essential services – or conceptualise vulnerability as essentially ‘ground-based’ and narrow in scope. Indeed, Article 5(3) of the Unfair Commercial Practices Directive (UCPD) refers to consumers who are ‘particularly vulnerable to the practice or the underlying product because of their mental or physical infirmity, age or credulity’. Similar definitions can be found in various recitals of consumer directives. Recent digital market regulation continues to focus on personal attributes within the context of vulnerability. Specifically, Article 5(1)(b) AI Act refers to ‘vulnerabilities of a natural person or a specific group of persons due to their age, disability or a specific social or economic situation.’ As such, the definition seems to go beyond personal characteristics and to include a broder social context. However, recital 29 states that the latter may include persons living in extreme poverty or ethnic or religious minorities and thus remains within the existing understanding of vulnerability as exception and essentially ground based.
Shortcomings of the ground-based approach
The shortcomings of a ground-based approach toward vulnerability have been explored extensively. Focusing on grounds alone is reductionist. Our understanding of vulnerability goes beyond that. For example, Fineman (2013) conceptualises vulnerability as universal and an essential part of the human conditions. It is only particular in the way, that the individual experience of this vulnerability may differ, depending on the assets available to them. The question is thus not whether we can minimize vulnerability, but how to foster resilience. In the economic context, this means that vulnerability is essentially situational, depending on the different power relationships and a result of various factors related to our assets, specific spaces, and personal circumstances. For example, it has recognised that we all experience vulnerability in the digital space (Riefa 2022). Consumer vulnerability has been defined as ‘a state of powerlessness that arises from an imbalance in marketplace interactions or from the consumption of marketing messages and products’ (Baker at al 2005). A ground-based approach is ill suited to recognise such a dynamic situational experience of vulnerability as the personal characteristics may be a factor, but cannot be conclusive for the experience of vulnerability. Looking at the Member States, the specific approach towards vulnerable consumers as per Article 5(3) UCPD also has limited legal relevance; if vulnerability based on specific characteristics is viewed as an exception to the norm, its scope of application become unduly limited to be relevant in practice
Can ground-based approaches remain relevant? Using sexist advertisement as example
This blog post explores how ground-based approaches towards vulnerability can potentially have some effect within the Member States if they are placed within a broader framework of non-discrimination law, specifically as the latter is able to recognise situational vulnerabilities of specific groups going beyond the recognition of cognitive limitations. I like to demonstrate this by briefly considering the German and British approaches towards the regulation and evaluation of sexist advertisement. Sexist advertisement is situated in the cross section of consumer law and non-discrimination law. As a commercial practice, it falls within the scope of the UCPD. However, some States regulate sexist advertisement within their non-discrimination law frameworks. Early drafts of Directive 2004/113/EC on equal access to goods and services also included advertisement within its scope (now excluded in Article 3(3)). Indeed, if we consider consumer vulnerability as a state of powerlessness as explored above, we realise how sexist advertisement is not only discriminatory because it potentially reinforces inequality and degrades some market participants but can also exploit related vulnerabilities if it impacts consumer behaviour. Under that reading, sexist advertisement is not simply advertisement that includes overly sexualised, vulgar or objectifying images but should be viewed within the broader social structures of gender inequality. For example, if pregnant and new mothers are in a transitional state, during the time of physical and psychological change, and potentially vulnerable due to various cultural, socio-economic and medical reasons that relate to the construction of motherhood, marketisation campaigns can exploit these vulnerabilities by reinforcing specific idealised versions of early motherhood and fear campaigns that provide the illusion of choice but in fact increase their sense of powerlessness (VOICE 2010). Indeed, this powerlessness may then be further exacerbated as they enter new market unknown to them.
Comparing the German and British approaches toward the regulation of sexist advertisement can help us understand how a non-discrimination law framework enhances our understanding of consumer vulnerability within that context. Their comparison is particular interesting, because despite obvious differences between the German civil law system and the UK legal system dominated by English common law, both countries have been leading on consumer protection law since the 1970s albeit with some differences in approach (Micklitz 2015). The role of non-discrimination law within the national legal systems is very different however (e.g. Mulder 2019). While UK pragmatic legal approaches have elevated non-discrimination law principle applicable between private parties, the dominance of the German constitution within the equality discourse has reduced issues of equality to conflicts between the state and individuals and the right to dignity. This is also evident in the respective approaches towards sexist advertisement.
The German Werberat (Advertisement Council) considers sexist advertisement through the lens of degrading treatment (Guidelines). This influences the meaning of discrimination within its scope as it is linked to ideas of dignity. With regard to gender roles, the guidelines distinguish between the recognition of empirical realities and prescriptive stereotypes that amount to overt discrimination. Thus, in the Werberat’s guidelines it is not considered discriminatory to suggest in advertisements that women are most commonly the primary carer, but it is problematic to suggest that this is simply the (main, sole, or only) task of women. The Advertising Council also considers slogans and illustrations that ridicule persons simply because they do not conform to prevailing ideals. Beyond that, the guidelines identify cases dealing with objectification of (mostly) female bodies, at times in combination with violence-glorifying slogans. This includes situations that give the impression that people can be bought or that equate people with objects; that reduce people to their sexuality or suggest their sexual availability; that convey a degradation of gender through exaggerated nudity; or that are pornographic in nature. Beyond these guidelines, sexist advertisement may be deemed to be an unfair business practice under the general clause of section 3(2) of the German Unfair Commercial Practices Act (UWG). As a catch-all, this provision is deemed non-exhaustive regarding ‘commercial practices that are contrary to morality and decency’ as this falls outside the scope of full harmonisation of the UCPD. In the past, this has specifically invited interpretation of the norm within the light of the constitutional protection of human dignity which only catches the most vulgar forms of advertisement, for example suggesting the sexual availability as a possible consequence of the consumption of the advertised alcoholic beverage by using terms such as “Bosom Grabber” or “Panties Striker”. However, even in this context the courts recognised changing attitudes and sexual liberation, which may allow for a more relaxed approach towards such type of advertisement in the future (BGH, judgment of 18.05.1995, I ZR 91/93).
The UK’s Advertising Standards Authority (ASA) on the other hand has a broader notion of sexist advertisement as it bans marketing communications which ‘include gender stereotypes that are likely to cause harm, or serious or widespread offence’ (4.9 CAP Code and 4.14 BCAP-Code).
In its guidelines, it is explained that this refers to sexist advertisement including those related to stereotypes, e.g. if the family creates chaos but it is the mother’s responsibility to clean it or men failing at the most banal tasks in the areas of household chores or child-rearing. It also challenges advertisement that it is more important for new mothers to look attractive or keeping a home pristine than other factors such as their emotional wellbeing or ads that belittle men for carrying out stereotypically ‘female’ roles or tasks. This provision has been interpreted broadly to include using a patronising tone (“girl boss”) and objectifying, derogating or sexualising terms even if ‘bleeped out’.
Overall, we can see that the dominance of the constitutional approach towards dignity in Germany informs the type of sexist advertisement that should be banned and results in a focus on extreme forms of degrading of overtly discriminatory images or slogans. Such advertisement certainly can have impact on the social norms and attitudes and thus structural gender inequality, but it seems less likely to directly influence the consumer behaviour of the groups that are degraded. Advertisement that overtly sexualises the female body or suggests sexual violence is usually not even aimed at women. While their presence may impact women’s self-image that can lead to potentially self-harming consumer decisions in the long term, it is unlikely to convince women to purchase the product. As such, the advertisement is not exploiting the consumers vulnerability during the specific market interaction and their ban is unrelated to consumer vulnerability.
While the ASA may deal with various types of advertisement that are similar than those considered under the German system, the notion of sexist advertisement is broader, and includes actions that are directly aimed at exploiting consumers in vulnerable situations. Advertisement that suggests that young mothers should simply ‘bounce back’ after pregnancy does not only impact social expectations but may also influence the consumer behaviour of young mothers that have internalised these expectations as they find themselves within a new market that they are not yet able to navigate. That the law should recognise this specific vulnerability of women who have given birth can be explained with reference to a non-discrimination law that recognises differences between groups with protected characteristics (because only biological women can become pregnant) and the different impact of apparently neutral rules (since fathers and mothers are not equally affected by early parenthood). Understood in this way, consumer vulnerability is not simply referring to cognitive limitation of some consumers, but can recognises the specific situational context, considering structures of inequality, medical impact, and the navigation of new unfamiliar markets.
Posted by Dr Jule Mulder, Associate Professor in Law, University of Bristol Law School
British Association of Comparative Law 
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