PUERTO RICO Law and Practice Contributed by: Mónica Ramos-Benítez and Roberto A. Cámara-Fuertes, Ferraiuoli LLC
1. Product Safety 1.1 Product Safety Legal Framework
1.2 Regulatory Authorities for Product Safety Without considering applicable federal regulators that may have jurisdiction and are elsewhere contemplat - ed in this publication, DACo is the main regulator for product safety and quality in Puerto Rico. Act No 5 of 23 April 1973 created DACo as an execu - tive department of the government of Puerto Rico (P.R. Stat Ann., Tit. 3 § 341 (a)) with the purpose of “vindicat[ing] and implement[ing] the rights of the consumer, halt[ing] inflationary tendencies…” among others. P.R. Stat. Ann., Tit. 3 § 341 (b). DACo’s organ - ic statute empowers the agency to regulate unfair or deceptive practices, set and enforce consumer- protection regulations, investigate and conduct adju - dicative proceedings. As part of its broad enumer - ated powers, DACo was specifically given the task of “… promot[ing] and establish[ing] standards for the quality, safety and genuineness in services and in the products for use and consumption and to require compliance therewith”. P.R. Stat. Ann., Tit. 3 § 341e(l). DACo also has the power to impose, after due pro - cess considerations, fines of up to USD10,000 per infraction of Regulation 7319, and may consider the volume of business at the time of imposing such fine. See Regulation 7319, Section 11 at p. 19. There are no published cases from the Puerto Rico Supreme Court analysing Regulation 7319. There are, however, two cases that invalidated on due process grounds DACo’s imposition of fines for alleged violations of Regulation 7319. See DACo v J . Pica & Cía , No. KLRA20080657, 2009 WL 5736697 (P.R. App. Ct. Aug. 31, 2009) and Me Salvé , Inc . v DACo , No. KLRA201600029, 2016 WL 1358510 (P.R. App. Ct. Feb. 29, 2016). These two cases are not precedent but may be cited for their per - suasive value. See Rule 11 of the Puerto Rico Court of Appeals, P.R. Stat. Ann., Tit. 4 Ap. XXII-B, R. 11. 1.3 Obligations to Commence Corrective Action Neither DACo Regulation No 7319 nor the Puerto Rico Civil Code of 2020 includes an express obligation to voluntarily commence corrective action. However, the Puerto Rico Supreme Court has validated in Puerto Rico, as a waivable, affirmative defence, the doctrine of mitigation of damages. See Fresh - O - Baking Co . v Molinos de P . R ., 103 DPR 509, 520-521 (1975); Apon-
As a US Territory, the Commonwealth of Puerto Rico is subject to federal laws and regulations. Thus, in addi - tion to other applicable federal regulatory frameworks that are covered elsewhere in this publication, there are two principal sources of law that in some fashion regulate or affect the product safety legal regime in Puerto Rico: the Puerto Rico Civil Code of 2020 and Regulation No 7319 issued by the Puerto Rico Depart - ment for Consumer Affairs (“DACo” for its Spanish acronym or “Department”). • The Puerto Rico Civil Code of 2020: Act 55 of 1 June 2020 (effective 180 days after its enactment or, depending on the circumstances, as provided by the Act itself) codified for the first time into law several provisions establishing strict civil liability upon designers, manufacturers and (depending on the circumstances) anyone in the distribution chain of a product, for “unreasonable defective products due to their design or manufacture”. See State - ment of Motives, Act 55-2020 at p. 14. Although these provisions shall be discussed in further detail elsewhere in this chapter, they impose a post- design and manufacture mechanism that (through vindication in the courts) allows redress for any harm caused by unsafe or defective products. • DACo Regulation No 7319: Effective as of 13 March 2007, Regulation No 7319 titled “Quality and Safety Regulation” regulates the quality and safety of all products for use and consumption in Puerto Rico, including prepared and packaged food. See Rule 2 of Regulation 7319 at p. 2. A “product” is defined as “any material thing that is the object of commerce”. Id., Rule 4 (h) at p. 3. Regulation No 7319 prohibits sales of inferior, altered, or danger - ous goods; prescribes disclosures and labelling; and, in food service, restricts the use of partially hydrogenated oils/trans fats to reduce cardiovas - cular risk. It also contains specific prohibitions regarding products, including expired products, products with manufacturing defects, deteriorated or used products, illegal products, dangerous products, dangerous products for children, discon - tinued products, useless products or products for professional use. Id., Rule 6 (A) to (I) at pp. 5-9.
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