a tripartite report - Unctad

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(iv) In January 2005, fake Gentrisone Cream (a product of Shin Poong, South Korea) was reported. In this
case, the active ingredient was replaced with hand and body lotion.
(h) The Guardian of 8 November 2007 had the title; Consumer awareness is no laughing matter.
(i) The Business Times of 6 January 2008 had the title; Stakeholders urge for more awareness education.
( j) Nipashe of 14 March 2008 had the title; Importation of counterfeit goods is a threat to consumers. More
than 80 per cent of consumers in the United Republic of Tanzania are not aware of their rights.
(k) Uhuru, a Swahili newspaper of 4 April 2008 had front page story with the title, “Expired toothpaste chemicals
were found for Tanga Sabuni Detergent” – The chemicals were meant for making a famous toothpaste in the
country – Aha.
(l) Guardian of 27 March 2008 had the title; Vision 2025: Shall we achieve `Green Revolution`? The prices of
fertilizers and farming implements remain higher due to cheating by the distributors of fertilizers.
There are no provisions in MMA that provide for
an FCC initiated investigation on whether a claim
as above is actually meant to blame and defame
a competing product and whether such claims
are made by a competitor of the producer of the
blamed product. The process of ascertaining facts
about products is a public inquiry for the FCC. As
has been noted above, under Regulation 12 of the
MMR, the FCC has to satisfy itself of the locus of
the complainant (who has to be the IP owner or
agent) and a case is not ordinarily investigated
until a security deposit has been made. There are
also safeguards within the MMA and MMR against
frivolous complaints as earlier indicated. However,
civil society organizations such as TCAS, as well as
the media have a leeway to pronounce allegations
and hope that enforcement institutions such as the
FCC would act on their allegations.
While it is acknowledged that the FCC has been
working so hard to reduce the problem of counterfeit
products in the market by destroying them
and giving severe punishment in accordance with
the law, the problem is still on the rise. Despite the
rise in numbers of acts of unethical business conduct
and violation of consumer’s rights the TCAS
considered that partnerships with independent
civil society to curb the situation have not been
extensively explored.
4.0 THE INSTITUTIONAL
FRAMEWORK
4.1 The Fair Competition Commission
The FCC is established under Section 62 of the Act
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minations after its secretariat has investigated, reviewed
or assessed matters under the FCA. While
there is a thin line between the secretariat and the
FCC, the functional separation of duties is clear in
practice. The FCC does appear to be a fairly independent
agency, considering its functions, appointment
and tenure of members, investigatory
powers, funding, etc as explained in detail below.
4.1.1 Functions of the Commission
Section 65 outlines a rather long list of the functions
of the FCC ranging from Section 65(2)(a) –
(m) i.e. 13 functions to perform. The roles can be
summarized into two categories i.e. enforcement
and advocacy. Enforcement functions include investigations
into anticompetitive trade practices
and advocacy includes championing competition
and consumer protection by sitting in on any public
inquiry or contribute to policy and legal reform.
With such a responsibility load, the Chairman of
the FCC is expected, in consultation with the other
members of the FCC, to determine from time to
time the priority to be given to any of the functions
and activities set out above for the effective and
79 .
There is an important function that the FCC has
been granted under Section 65(4) of the FCA.
Proactively, the FCC is entitled to participate in
the proceedings of courts, tribunals, regulatory
authorities, Government inquiries, commissions,
committees and working groups for the purpose
of observing the proceedings and making representations
on matters relevant to the FCC’s functions.
This is a peculiar function that is not available
to sister authorities in Zambia or Zimbabwe.
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