|
 |
Consumer Issues
|
|
 |
|
|
1. APPLICATION OF THE CODE OF PRACTICE
Members of the Weight Management Council Australia Ltd (the Council) are bound by the Weight Management Code of Practice.
2. PRINCIPLES
The agreed standards upon which the Code is based, recognise and affirm the following consumer rights:
-
to be informed;
- to choose;
- to be heard;
- to redress;
- to educate consumers about weight management products and services;
- to be provided with safe and effective weight management products and services;
- to receive products and services that are nutritionally sound;
- that weight management products available are efficacious.
3. OBJECTIVES OF THE CODE OF PRACTICE
3.1 To ensure that the advertising by Members gives accurate information about costs and the likelihood of success of weight management products and services.
3.2 To ensure that members providing weight management products and services deal openly, honestly and fairly with consumers and represent themselves in accordance with their training and accreditation.
3.3 To enable consumers to make informed choices about the weight management products and services they purchase.
3.4 To achieve standardised and recognised training and qualifications for those providing weight management products and services.
3.5 To ensure that consumers are informed about their legal rights and the Code before they enter into a contract.
3.6 To ensure timely and appropriate resolution of disputes within an established framework of dispute resolution mechanisms.
3.7 To ensure that weight management products and services do not compromise health status and are supported by sound food technology and nutritional science.
3.8 To ensure that Members actively promote the Code to their clients and potential clients.
4. ADVERTISING
4.1 All advertisements or marketing practices by Members must be truthful and accurate in content and intent. All advertisements and marketing practices by Members must not mislead consumers or be likely to mislead consumers.
Note: Misleading consumers may include, amongst other things, making false or misleading representations to a consumer as to:
(a) the price of weight management products or services;
(b) the benefits of weight management products or services; or
(c) the need for any weight management products or services.
4.2 If any cost is stated there should be full disclosure of what entitlements that cost covers. In addition, a statement of any other products or services that are a necessary component of the weight management program must be included, including any additional cost.
4.3 Members must comply with the Slimming Advertising Guidelines – Annexure 2.
5. DISCLOSURE
5.1 Members must display at each of their places of business a copy of their certificate of membership of the Council.
5.2 Members must disclose all information that consumers request and ensure that the information provided is truthful, accurate and unambiguous.
5.3 Members must produce and provide to each consumer an information brochure/pamphlet outlining the nature of their weight management products and services. Members must ensure that such promotional material is truthful, accurate and unambiguous.
5.3A Members must ensure that all promotional material does not make misleading or false comparisons with products or services offered by competitors.
5.4 Members must produce information in the form of a pamphlet or booklet outlining the consumer’s rights in relation to the purchase of the weight management products and services, including the Member’s refund policy which must be displayed in a prominent position at each Member’s place of business.
5.5 Members must make copies of the Code available to consumers on request.
5.6 In the initial telephone contact, the following information must be given to consumers upon request:
- the way the weight management products and services operate and what is required by the consumer;
- the number of visits in any given time frame;
- whether the visits are a mix of education/information/exercise/evaluation;
- whether the weight management products and services involve the purchase of pre-packaged food/meal replacement/or certain foods;
- the commitment that is required by the consumer to ensure the weight management products and services are successful;
- any contracts that may be required;
- how the cost of the weight management products and services is to be calculated, for example if a person undertook a weight management program for three months, then the estimated cost of that program should be provided.
5.7 Upon the initial visit to by a consumer the following information must be provided to the consumer:
the nature of weight management products and services in detail;
the full cost including expected food cost requirements/meal replacements;
when a client needs to seek medical advice;
the nature of any contract or guarantee forms;
what is expected of the consumer in order to make the weight management products and services successful;
information booklets that outline the weight management products and services and the consumers rights must be provided.
5.8 Before the consumer signs a contract for the weight management products and services, the following information must be given to the consumer:
written information on the weight management products and services, which includes the member’s policy on refunds, dispute resolution and the cooling off period;
-
the contract should clearly outline the cost of the consumer’s weight management program, including, amongst other things, the number of visits;
- an itemised food list including individual prices should be made available and in the case of weight management programs that have a weekly menu plan, the estimated cost of the weekly menu plan.
6. CONTRACTUAL AGREEMENTS
6.1 Unless otherwise expressly provided in this Code, all contracts must be in writing in at least 10 pt font, stating in plain and legible English the rights and responsibilities of both the consumer and the Member and must comply with the laws of the state or territory in question.
6.2 Consumers for whom English is not a first language must be referred to an interpreter service to ensure that the contractual agreement is fully understood before the consumer signs the contract.
6.3 Contracts must not contain unfair terms. A contract term will be considered to be unfair if it causes a significant imbalance in the parties' rights and obligations arising under the contract to the detriment of the consumer. Under no circumstances should the contract attempt to exclude any statutory protection.
6.4 The contract must clearly identify the following:
- the parties to the contract;
- the weight management products and services to be provided;
- the cost of the weight management products and services, including all fees payable or that may be payable under the contract and itemised so that it is clear what the consumer is paying for;
- the frequency of all amounts payable under the contract;
- the minimum term of the contract; and what the consumer undertakes to do.
6.5 The contract must indicate that there are procedures that must be followed in the case of a complaint or dispute, which are annexed to the contract.
6.6 All contracts relating to the provision of weight management products and services should contain a clause stating that the Member agrees to comply with the Code.
6.7 Contracts must not bind clients to weight management products and services for more than a period of 12 months, after which the contract can be renewed if the client wishes to continue using the weight management products and services.
6.8 The clause in the contract providing for the cooling off period must comply with the requirements of clause 7.5 and must be drawn to the attention of the customer at the point of sale.
7. COOLING OFF PERIOD
7.1 A cooling-off period of five (5) days, subject to the laws of the state or territory in question, will apply to all pre-paid weight management products and services costing in excess of $50 from the date a consumer signs a contract with a Member. If a contract is cancelled by the consumer within the cooling-off period, the Member will release the consumer from all liabilities under the contract and, subject to clause 7.2 and 7.3, refund all monies paid by the consumer.
7.2 Notwithstanding clause 7.1, providing the Member has not breached the Code, if any service of a professional nature is provided within the cooling off period, for example, by a doctor, dietician, nutritionist or psychologist, the consumer must pay for the service in accordance with the Member's scheduled fees.
7.3 If any weight management products and services (with the exception of fresh or frozen foods) are provided within the cooling off period, these must be returned by the consumer unused with the packaging, if any, intact. If these products are not returned within the cooling off period they must be paid for by the consumer at the scheduled price.
7.4 Cancellation of a contract during the cooling off period must be in writing and the cancellation notice must be served by:
(a) delivering it in person or having it delivered to the relevant Member’s place of business.
(b) posting the notice to the Member’s place of business by registered mail within five (5) days of entering into the contract. Service by post shall be deemed to be effected by properly addressing, prepaying and posting a letter containing the cancellation notice through Australia Post.
(c) faxing or emailing the notice to the Member's place of business within five (5) days of entering the contract.
7.5 Notice of the cooling off period must be given to a consumer in bold type, not less than 10 point in size, and must be prominently displayed in the body of the contract which must include the following:
(b) for the consumer to cancel the agreement he or she must mail/fax/e-mail/deliver a notice to the Member in accordance with the provisions of clause 7.
8. REFUND
8.1 Subject to clause 8.3, all refunds allowable under the Code shall be provided, in the ordinary course of events, within 30 days following the date of the written request by the consumer.
8.2 A request for a refund must be a request in written form. Members must provide a standard form to be filled in by the client setting out the date the refund was requested and the reasons given. Members must provide consumers with a copy of the relevant Member's refund policy and the name of the person with authority to process the refund.
8.3 Any direct debit arrangement must be cancelled within 14 days of the receipt of the written request for a refund.
8.4 Members must provide a pro rata refund in respect of weight management products and services in the following circumstances:
(a) Where a consumer has been diagnosed by a medical practitioner to have a physical or mental illness and where it would be detrimental to continue the weight management products and services and this is substantiated by a medical certificate;
(b) Relocation of residential address to a distance that would entail the consumer travelling an additional 20 kilometres or more to a Member’s place of business and correspondence or long distance weight management products and services are not considered to be suitable by the consumer; and
(c) If the consumer dies, his or her executors shall be entitled to the amount of monies remaining under the contract.
8.5 Pro-rata refunds are to be calculated according to the total purchase price and the number of remaining days or visits in relation to the weight management products and services.
8.6 If a weight management product and service consists only of the provision of food products or vitamin pills and these are provided in the form of regular consignments, then the consumer must be entitled to a refund of the unused goods for the period of agreed consignment.
COMPLAINTS RESOLUTION PROCEDURES
Introduction
The Weight Management Council Australia Ltd (Council) has established a complaints resolution procedure to provide a cost free process for resolving complaints between Council members and their clients.
The complaints procedure does not replace or remove consumers’ rights to seek compensation through the small claims courts or tribunals but is an additional avenue for the resolution of complaints.
What should I do if I am unhappy with the service I have received?
Step 1: Contact the complaints officer of the member company
If you are unhappy with the service provided by a member of the Council, the first thing you should do is contact the complaints officer of the member company. The Code requires each member to nominate a specific person within the organisation who is responsible for handling complaints. You will have been given the name and telephone number of the complaints officer when signing a contract or joining the weight management program.
The complaints officer will keep you informed about the progress of your complaint and will, within 14 days, provide you with a written response to your complaint.
If, after 14 days, you are not happy with the response you have received or you have had no response from the member, you can make a complaint to the Complaints
Committee.
Complaints Committee
Step 2: Write to the Complaints Committee
Who makes up the Complaints Committee?
The Complaints Committee comprises:
- Independent Chairperson of the Board the Council;a consumer representative being the Board representative of the Consumers’ Federation of Australia Inc;
- the Board representative of the Australian Nutrition Foundation Inc or another representative of the Australian Nutrition Foundation Inc appointed by the Board of the Council; and
- two industry representative appointed by the Board of the Council with the proviso that such representatives are not allowed to participate in any discussions or meetings that relate to a complaint against the member companies they represent.
Tenure for Complaints Committee members is two years however they shall be eligible for re-appointment.
How will the Committee handle the complaint?
On receipt of your written complaint, the Complaints Committee Secretariat will seek a written response from the member. The member is then given 14 days to respond. Once written evidence from both parties is to hand together with any required documents, the Committee will convene promptly to make a determination. Usually, neither you nor the member will be required to attend the hearing in person unless there are, in the opinion of the Committee, exceptional circumstances.
Hearings will be held as required and parties will be notified in writing within seven days of the determination.
The Committee is not bound by the rules of evidence but can inform itself in any way it sees fit and can, if appropriate, seek expert medical, legal or other opinion.
Determinations will be made on the basis of Code rules and what is considered fair in all the circumstances of a case. Determinations will be made on a majority decision of two to one and will be binding on the member.
You then have 14 days in which to accept the determination as full and final settlement of the complaint or alternatively to reject the determination and seek resolution by other means such as the small claims courts or tribunals.
If you accept the Complaints Committee determination, then the member has 30 days to take remedial action.
What action can the Complaints Committee take?
The Complaints Committee can make whatever determinations it sees fit to resolve a complaint including but not limited to:
- refund of money paid toward a program including food and meal replacement products excluding fresh or frozen food and exercise programs;
- acknowledgment of the consumer’s right to cancel a contract within in the cooling off period and refund of money paid in accordance with the Code.
Where a complaint involves a breach of the Code, the Complaints Committee will report to the Council with a recommendation that a particular sanction be imposed upon the member. The sanction will be as follows:
- More than three findings within a six month period against a company will incur a warning from the Council and an administrative surcharge of $100;
- A further finding within three months of the initial warning, whether related to a new complaint or failure to remedy an existing one, will incur a second warning and a fine of $1000;
- A further finding will incur expulsion. Expulsion entails the loss of the right to display the Council logo and to represent the company/individual as being a member of the Council. Expulsion shall continue for a minimum period of 12 months. After this time, the company/individual may re-apply for membership.
Reporting
The Complaints Committee will report annually to the Council on the complaints received and how they were resolved. In addition, it will report on the number and nature of any sanctions recommended.
What Information Should I Provide?
Step 3: Information/documents required by the Complaints Committee
When writing to the Complaints Committee, be sure to include:
- your name, address and daytime telephone number;
- name of member company/individual;
- copy of contract or description of the weight loss program purchased and its price
- copies of any correspondence with member;
- nature of complaint;
- a brief description of the member’s response to the complaint.
Complaints must be lodged with the Complaints Committee within 12 months of the date of the transaction giving rise to the complaint.
Step 4: Where to send your complaint
Send your written complaint to:
The Secretary
Weight Management Council Australia Ltd
GPO Box 4401
MELBOURNE VIC 3001
E-mail: wmca@assocmanoz.com
Initial telephone enquiries can be made to :
The Secretary
Telephone 03 8637 4722
|
|
|
