Good to know! The FDA just issued a warning about the popular antibiotic Azithromycin, also know as “z-packs”. Read about it here:
The FDA Issues a Warning on the Popular Antibiotic Azithromycin
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Tag Archives: Texas consumer law
Stop changing your oil!
Just something else your car mechanic and/or your car dealership’s service department don’t want you to know about…read about your car’s true oil change requirements here:
Proceed with caution when purchasing prescription medicine from online sites
When purchasing your prescription medicine from online sellers, it is best to keep in mind that if it looks too good to be true, it is! Be wary of sites located outside of the United States, and of sites that offer deep discounts. Your health is much too precious to compromise with counterfeit drugs! For more information on how to determine which sites are legitimate, go to:
http://www.fda.gov/ForConsumers/ConsumerUpdates/ucm321121.htm
When it comes to your health and your medicine, be safe, and be well!
Scutt Law, PLLC’s fee schedule is now posted on our website
At Scutt Law, PLLC, we strive to provide our clients with a positive legal experience and remain transparent at all times in our billing practices. Our goal is to treat our relationship with each client as one that involves teamwork and communication. We keep our clients informed of any new developments on their case, and we respond to client requests for information in a timely manner. We have implemented a creative approach to the rates we charge for our services. We understand that in the current economic climate, it is unreasonable to charge a premium for legal services. Therefore, our rates are negotiable, and we are willing to work out payment plans tailored for each individual client. For more information, and to see a breakdown of our fee ranges as well as an overview of our billing practices, please visit the second tab from the top of our website under “about/fees.” Thank you for your interest in Scutt Law, PLLC!
CAVEAT EMPTOR: BEWARE AND BE AWARE!
Scutt Law, PLLC’s Consumer Awareness Series, Topic Number One
CARCINOGENS IN YOUR CHILD’S PLAY SAND AND CALIFORNIA’S PROPOSITION 65 WARNING LABELS
Scutt Law, PLLC’s CAVEAT EMPTOR (which means “buyer beware” in Latin) topic this week examines the dangers of play sand. Play sand is used in children’s sand boxes, and can be purchased at your local home improvement store or big box retailer. Many companies are adding the now all too familiar labels to their bags of play sand that read, “Warning: this product contains chemicals known in the State of California to cause cancer.” Not exactly something you want your child to be playing with on a daily basis, right?
First, why are these ominous California warning labels popping up all over our products that are located in Texas, and in other states outside of The Golden State? According to California’s Office of Environmental Health Hazard Assessment (“OEHHA”) website, Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, was enacted as a ballot initiative in November 1986. The Proposition was intended by its authors to protect California citizens and the State’s drinking water sources from chemicals known to cause cancer, birth defects or other reproductive harm, and to inform citizens about exposures to such chemicals. Proposition 65 requires the Governor to publish, at least annually, a list of chemicals known in the state to cause cancer or reproductive toxicity.
OEHHA does state on its website that, “the fact that a product bears a Proposition 65 warning does not mean by itself that the product is unsafe. For additional information about the product, contact the product manufacturer.” In other words, you can think of Prop 65 more as a “right to know” law than a pure product safety law. It allows consumers and their families to decide on their own if they want to purchase and/or use a product.
So, why are consumers in states other than California seeing the warning labels on products? Probably because big box retailers and home improvement stores sell items such as play sand in California and in other states, and/or because the product’s manufacturer is located in the State of California.
Why is play sand considered carcinogenic? Because most play sand sold today in retail and home improvement stores is not made of the same type of sand you and I used to play in as kids. It is manufactured from crystalline silica (a.k.a. quartz). Unlike natural sand that you would find on the beach, which has been “tumbled” by the wind, air and water, sand that is manufactured from quartz has sharp edges that can become embedded in lungs if it is inhaled.
Crystalline silica is considered hazardous under the OSHA Hazard Communications Standard (29 CFR 1910.1200). The material safety data sheet (MSDS) that accompanies play sand from a leading manufacturer lists the potential health effects from inhalation of the sand. Some of these health effects include:
1. Silicosis: Respirable crystalline silica (quartz) can cause silicosis, a fibrosis (scarring) of the lungs. Silicosis may be progressive; it may lead to disability and death;
2. Lung Cancer: Crystalline silica (quartz) inhaled from occupational sources is classified as carcinogenic to humans;
3. Tuberculosis: Silicosis increases the risk of tuberculosis;
4. Autoimmune and Chronic Kidney Diseases: Some studies show excess numbers of cases of scleroderma, connective tissue disorders, lupus, rheumatoid arthritis, chronic kidney diseases and end-stage kidney disease in workers exposed to respirable crystalline silica; and
5. Non-Malignant Respiratory Diseases (other than silicosis): Some studies show an increased incidence in chronic bronchitis and emphysema in workers exposed to respirable crystalline silica.
It is more than a little disconcerting that consumers are expected to allow their children to play in this product every day. Although it could be argued that the health problems listed above stem mostly from inhaled quartz, such as from sandblasting and other industrial or occupational uses, consumers do need to be aware of the contents of the products they purchase.
This is the first installment in the ongoing series “Caveat Emptor” by Scutt Law, PLLC. We strive to bring consumers up-to-date and relevant information about consumer products and issues in order to help each “buyer beware” on his or her own terms. UNTIL NEXT TIME, BEWARE AND BE AWARE!
*Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
Know your Texas consumer protection codes: Part three of series
Texas has some surprising (and very agreeable) consumer protection codes on the books that you as a consumer should be aware of. Most of these codes are “tie-in statutes,†which means that they can be brought under the Texas Deceptive Trade Practices Act (DTPA). Since the DTPA allows very favorable remedies, this is a definite advantage to the consumer. Scutt Law, PLLC will be presenting and explaining a few of the tie-in statutes at a time in installments, so that you the consumer are aware of the protections afforded to you under these Acts. This installment covers certain sales of a homestead and new and used manufactured housing standards.
Certain Sales of Homestead [Tex. Prop. Code Section 41.006]: This portion of the property code covers certain types of sales of a homestead. What is a homestead, you ask? In Texas, a homestead is a set of exemption laws that prevent the forced sale of a home to meet the demands of creditors. It provides the surviving spouse with shelter in the event of a death, and was added to the Texas Constitution to protect wives and children from gambling husbands back in the days of the “wild, wild west”. However, in most cases, homestead exemptions do not apply to forced sales to satisfy mortgages, mechanics liens, or sales to pay property taxes. A rural homestead may consist of no more than 200 acres for a family, and not more than 100 acres for a single adult. An urban homestead may not amount to more than 10 acres of land, together with any improvements on it. Unlike rural homesteads, the lots in an urban homestead must be contiguous.
The Texas legislature enacted the certain sales of homestead statute to protect homeowners against improper sham loans against a homestead. Texas prohibits a “sale-leaseback” of a homestead. If a homestead is sold at a price that is less than the appraised fair market value of the property, and in connection with the sale the buyer executes a lease of the property to the seller at a lease payment that exceeds fair rental value, all payments in excess of the sales price are considered interest. Under this law, the deed given to the buyer is void and no lien attaches to the homestead as a result of the purported sale.
The law applies to any sale of a homestead. However, it does not apply to the sale of a family homestead to a parent, stepparent, grandparent, child, stepchild, brother, half-brother, sister, half-sister or grandchild of an adult family member.
Manufactured Housing Standards Act [Tex. Civ. Stat. Ann. art. 5221f, sections 8, 14]: This Act is designed to provide the citizens of Texas with safe, affordable and well-constructed housing. It applies to manufactured homes constructed since 1976 under the rules of the United States Department of Housing and Urban Development (HUD) and to mobile homes constructed prior to 1976 that are transportable in one or more sections, and are eight body feet or more in width or 40 feet or more in length when in the traveling mode.
The major provisions of the Act regarding used homes include the requirement that a person may not sell, exchange or lease-purchase a used manufactured home to a consumer unless the appropriate seal or label is affixed to it. In addition, the Act requires that a written warranty be given on each home that the home is habitable. The term “habitable” means that there is no defect, damage or deterioration to the home that creates a dangerous or unsafe situation or condition. It also requires that the plumbing, heating and electrical systems are in working order, that the walls, floors and roof are free from substantial openings not designed and are structurally sound. Finally, it requires that all windows and doors are in place.
The consumer then has 60 days after the date of the sale to notify the seller in writing of any defects that make the home uninhabitable. Failure to give this written notice of the defects terminates the obligations and the liabilities of the seller. However, the warranty must conspicuously disclose this requirement to the buyer.
The new home provisions include the requirement that the manufacturer warrant that each new HUD-manufactured home is constructed or assembled in accordance with all building codes, standards, requirements and regulations prescribed by HUD. The manufacturer must also warrant that the home and all appliances and equipment included in the home are free from defects in materials and workmanship. The warranty must be in writing and must be effective for at least one year.
The new manufactured home retailer must give the buyer a written warranty that the installation will be completed in accordance with rules and regulations of the Texas Department of Housing and Community Affairs. Additionally, the retailer shall warrant that any appliance or equipment installed with the home will be installed in accordance with the manufacturer’s instructions and specifications. The retailer’s warranty must be in writing and must be effective for at least one year.
In the case of a breach of warranty by either the retailer or manufacturer of a new manufactured home, the consumer must notify the offender in writing of the need for warranty repair or service. If the manufacturer or retailer does not provide warranty service as requested, the consumer may request that the Texas Department of Housing and Community Affairs inspect the home. If after the inspection it is determined that the home needs repairs and that the manufacturer or retailer failed to make the repairs, the department may suspend or revoke the offending party’s license.
Texas has some very beneficial consumer protection laws, and it is to your advantage as a consumer to know your rights and to act on them. Therefore, you should contact an attorney if you feel you have a claim under the DTPA or any of the tie-in statutes.
*Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
Know your Texas consumer protection codes, Part two of series
Texas has some surprising (and very agreeable) consumer protection codes on the books that you as a consumer should be aware of. Most of these codes are “tie-in statutes,” which means that they can be brought under the Texas Deceptive Trade Practices Act (DTPA). Since the DTPA allows very favorable remedies, this is a definite advantage to the consumer. Scutt Law, PLLC will be presenting and explaining a few of the tie-in statutes at a time in installments, so that you the consumer are aware of the protections afforded to you under these Acts. This installment covers the removal of unauthorized vehicles from parking facilities, rent-to-own agreements and self-storage facility liens.
Removal of Unauthorized Vehicles from Parking Facility or Public Roadway Act [Tex. Trans. Code Ann. Section 684.086]: This Act protects consumers against the wrongful towing of a motor vehicle, or the charging of unreasonable fees for such towing. The Act applies to any public or private property that is used for restricted or paid parking of motor vehicles.
Under the Act, a parking facility owner may remove a vehicle from a facility only if the owner provides actual notice to the consumer. Notice requires that signs be posted on the property, and must comply with the requirement of the Act regarding size, location and content. For example, the sign must state “unauthorized vehicles will be towed at owner’s expense,” and contain the international symbol for towing and a telephone number that is answered 24 hours a day. Additionally, a parking facility owner may not accept anything of value from a towing company in connection with the removal of a vehicle from a parking facility, and he or she may not have a monetary interest in that towing company.
The Rental-Purchase Agreements Law [Tex. Bus. & Com. Code Chapter 92, Sections 92.001-92.202]: This law is designed to regulate rent-to-own agreements and the advertising of such agreements. The main goal of this law is to make sure that consumers are fully informed of the true nature of the transaction and the real costs involved. Think of an agreement with a rental outlet that allows a consumer to rent a television set. That agreement would be subject to this law if, for instance, the agreement provides that after a period of 24 consecutive monthly payments, the consumer will become the owner of the television set.
The law protects consumers by requiring that rent-to-own agreements be written in plain English (without legal jargon) and in any other language used by the merchant in an advertisement related to the agreement. The agreement must make full disclosure to the consumer of the terms of the agreement, and limits certain unconscionable clauses that may be inserted into the agreement by the merchant. The agreement also must disclose whether the merchandise is new or used, the amount and total of payments, the cash price of the merchandise, and the amount the consumer may be responsible for if the merchandise is damaged or destroyed.
Self-Storage Facility Liens Act [Tex. Prop. Code Ann. Sections 59.001-.046]: This Act is designed to protect consumers by regulating the process by which a consumer’s property is sold to satisfy unpaid rent at a self-storage facility. The Act provides that a lien (an official claim or charge against property or funds for payment of a debt or an amount owed for services rendered) attaches to stored property from the date the tenant places the property in the self-storage facility. This lien takes priority over all other liens on the same property, so even if the consumer still owes money for the purchase price of that property (for instance, for a bedroom set), the self-storage facility may seize the property, anyway. The consumer may redeem the property that has been seized prior to its sale by the storage facility by paying the amount owed the facility plus any reasonable expenses incurred by the seizure.
However, the storage facility may not seize the consumer’s property without a court judgment unless the original contract between the consumer and the facility includes a provision authorizing the seizure and sale in conspicuous bold or underlined print. If the provision is present in the original contract, the storage facility must deliver a notice to the consumer prior to seizing the consumer’s property. It is important to note that the requirements under this Act may not be waived by the consumer.
Texas has some very beneficial consumer protection laws, and it is to your advantage as a consumer to know your rights and to act on them. Therefore, you should contact an attorney if you feel you have a claim under the DTPA or any of the tie-in statutes.
*Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
Know your Texas consumer protection codes, Part one of series
Texas has some surprising (and very agreeable) consumer protection codes on the books that you as a consumer should be aware of. Most of these codes are “tie-in statutes,” which means that they can be brought under the Texas Deceptive Trade Practices Act (DTPA). Since the DTPA allows very favorable remedies, this is a definite advantage to the consumer. Scutt Law, PLLC will be presenting and explaining a few of the tie-in statutes at a time in installments, so that you the consumer are aware of the protections afforded to you under these Acts. This installment covers business opportunities, door-to-door sales, motor vehicle lemon laws and credit repair services.
Business Opportunity Act [Tex. Bus. & Com. Code Ann Sections 41.001-.303]: This Act protects people who purchase or lease products, equipment, supplies or services that will be used to begin a business in which the seller will continue to participate. Think of the advertisements you see around town or in your e-mail inbox that talk about starting your own business, working from home and making lots and lots of money per week doing next to nothing (usually for some sort of start-up fee). Since many (not all) of these offers are scams, the Business Opportunity Act was designed to protect Texas consumers from these enticing albeit illegitimate “opportunities.”
Under the Act, a business opportunity is regulated by the law if all three of the following elements are present: (1) it requires you, the buyer, to pay $500 or more to start the business, AND (2) the seller promises you will earn or are likely to earn a profit exceeding the initial investment, AND (3) the seller promises any one of the following: (i) the seller will provide locations or help you find locations on property not owned by either you or the seller for the use of or operation of the products, equipment, supplies, or services the seller is leasing or selling; (ii) the seller will provide a sales, production, or marketing program; this does not apply if the arrangement is defined as a “franchise” under federal regulation and certain requirements are met; or (iii) the seller will buy back any products, supplies, or equipment purchased, or any product made, fabricated, grown or bred by the purchaser using equipment or products sold or leased by the seller.
If a business opportunity meets these criteria, under the law the business must be registered with the Secretary of State before the seller advertises it or offers it for sale. Among other things, the business also may not: (1) employ a representation, device, scheme or artifice to deceive a purchaser; (2) make an untrue statement of material fact or omit a material fact; (3) represent that the business opportunity provides or will provide income or earning potential unless the seller has documented data to support the claims and the data is disclosed to the purchaser; or (4) make a claim or representation in advertising or promotional material or in an oral sales presentation that is inconsistent with the information required to be disclosed by the Act.
Home Solicitation Act [Tex. Bus. & Com. Code Ann. Sections 39.001-.009]: This Act protects consumers from the pressure that often accompanies a sale at their residence (think door-to-door sales). The law applies to the sale of goods or services that exceeds $25 and real property that exceeds $100, and gives the consumer a three day right to cancel the transaction.
Motor Vehicle Commission Code [Tex. Motor Vehicle Comm'n Code Ann. art. 4413(36)]: This Act contains the Texas “Lemon Law,” and it protects consumers by regulating the distribution and sale of new (not used) motor vehicles. The law requires a manufacturer or distributor to make any repairs necessary to make the vehicle conform to the express warranties. If the vehicle cannot be conformed to the warranty within a reasonable number of attempts, the manufacturer or dealer must either: (1) replace the vehicle with a comparable vehicle; or (2) accept a return of the vehicle and refund the owner the full purchase price less a reasonable allowance for the owner’s use of the vehicle. The owner must also be reimbursed for reasonable incidental costs resulting from the loss .
When has the manufacturer or dealer reached a “reasonable number” of attempts to repair the vehicle? Generally, whenever: (1) the same nonconformity has been subject to repair four or more times within the first 24 months or 24,000 miles, and two of the attempts were within a period of 12 months or 12,000 miles after the date of sale (if it is a safety defect, only half as many repair attempts are required); or (2) if the vehicle is out of service for repair for 30 or more cumulative total days in 24 months or 24, 000 miles.
Credit Service Organizations [Tex. Fin. Code Ann. Sections 393.001 et seq.]: This act protects consumers who purchase the services of a credit service organization (also called a “credit repair service”). Think of the organizations that advertise that they can improve a person’s credit history or rating, or obtain an extension of credit. It should be noted that the Act does not apply to licensed lenders, licensed real estate brokers, licensed attorneys, consumer reporting agencies or nonprofit organizations.
The Act requires that the organization register with the state and post a surety bond, and, among other things, also gives the consumer the right to cancel a contract with the organization at any time before midnight of the third day after the date of the transaction.
Texas has some very beneficial consumer protection laws, and it is to your advantage as a consumer to know your rights and to act on them. Therefore, you should contact an attorney if you feel you have a claim under the DTPA or any of the tie-in statutes.
*Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
Texas consumers: Know your rights
Consumers in Texas are protected by the Texas Deceptive Trade Practices and Consumer Protection Act (hereinafter “DTPA”). The purpose of the DTPA is to “protect consumers against false, misleading, and deceptive trade practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection.” [DTPA §17.44] This means that Texas consumers are not limited to recourse under contract law or common law fraud, which often lead to insignificant remedies.
Are you a consumer? Yes, if you are “an individual, partnership, corporation, this state, or a subdivision of this state who seeks or acquires by purchase or lease any goods or services.” [DTPA §17.45(5)] However, you are not a consumer for purposes of the DTPA if you are a business consumer with assets of $25 million or more. It is important to be aware that the consumer does not have to be the one who actually pays for the the goods or services. Therefore, a child can be a consumer with respect to goods and/or services paid for by the parent, and an employee can be a consumer with respect to goods and/or services paid for by the employer.
“Goods” includes tangible property, inventory and real estate. “Services” excludes merely lending money as well as the rendering of a professional service, the essence of which is the providing of advice, judgment or opinion. However, the professional service exemption does not apply to express misrepresentations, breaches of express warranties, failures to disclose, or unconscionable actions or courses of action. Therefore, a plastic surgeon who tells his patient that his face will look exactly like George Clooney’s face after the operation can be sued under the DTPA for breach of an express warranty, if after the surgery the patient does not look exactly like Mr. Clooney.
It should be noted that the DTPA does not apply to a cause of action arisng out of a transaction, a project, or a set of transactions relating to the same project that involves a total consideration provided by the consumer of more than $500,000. However, this does not apply to a residence, so the DTPA can apply to a home worth more than $500,000.
Keep in mind that there are some prerequisites to a DTPA claim. The consumer must give the defendant 60 days written notice before filing a claim, and the defendant must be given 60 days from receipt or 90 days after answering to propose a settlement offer to the consumer. Also, an action under the DTPA must be brought within two years after the date on which the false, misleading, or deceptive act or practice occurred or within two years after the consumer discovered or should have discovered the occurrence. Therefore, it is important that consumers know their rights and act quickly.
There are many more nuances to the DTPA, too many to mention here. However, the most important point is that consumers need to be mindful that the Texas legislature has a very effective consumer protection act on the books, and legal counsel can assist consumers in protecting their rights under the DTPA. Keep in mind when deciding whether or not to contact an attorney that in addition to damages and equitable relief, the DTPA mandates the award of attorney’s fees if the consumer prevails. So, if you are a consumer and you feel that you have a claim under the DTPA, you should contact an attorney to explore your options.
*Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.