Rethinking Vulnerability: How Consumer Law Forgets About Elders

A Theory of Elders as Vulnerable Consumers

Professor Tedeschi opened by highlighting a critical gap: private law generally fails to recognise elders as a distinct group requiring protection. Unlike minors—the only other age-distinct class in private law—elders face unique challenges that don't fit neatly into existing legal frameworks. Crucially, she rejected the characterisation of elderly individuals as disabled, emphasising that aging itself is not a disability but rather a universal process that impacts all elders differently, sometimes in combination with actual disabilities.

While the EU Charter of Fundamental Rights recognises elders as a protected group under Article 25, Professor Tedeschi highlighted that this protection doesn't align with the reality of EU consumer law practice. Current regulations and case law assume an "average consumer" who is reasonably well-informed, observant, and always seeks the best economic outcome. Professor Tedeschi questioned whether this standard fairly reflects elderly consumers, who may experience age-related cognitive decline, emotional vulnerability, and increased susceptibility to fraud.

Drawing on empirical studies, she explained that while elders retain decision-making capacity, the biological aging process diminishes problem-solving abilities. This cognitive compromise makes them prime targets for consumer fraud—a vulnerability that current legal frameworks inadequately address. Professor Tedeschi called on legal experts to be bold and consider how aging impacts consumers and how these impacts should be addressed in our legal systems, acknowledging the delicate balance between protection, paternalism, autonomy, and empowerment.

Vulnerability in Digital Environments

Carolina Lisboa, serving as discussant, challenged traditional categorical approaches to vulnerability. Rather than treating groups like minors as inherently vulnerable, she advocated for Florencia Luna's layered approach, which recognises vulnerability as fluid and situational. This raised a fundamental question: Should elderly consumers be treated as a homogeneous vulnerable group, or should vulnerability be assessed based on individual circumstances?

Carolina highlighted how digital environments amplify autonomy concerns for all consumers, not just the elderly. Online businesses use automated profiling to anticipate—or even dictate—consumer preferences, creating potential losses of autonomy across age groups. She argued that all individuals face some level of manipulation in digital spaces, challenging whether vulnerability should be assessed categorically or through a more dynamic, individualised approach.

Professor Tedeschi responded by emphasising the importance of recognising cognitive biases in consumer decision-making. While acknowledging that all consumers face digital manipulation, she pointed out that older adults have distinct decision-making processes requiring tailored legal responses. She suggested that legal frameworks must consider both universal and age-specific vulnerabilities while ensuring protections don't result in undue paternalism.

Potential Impacts on Autonomy

Pim Oosterhuis introduced a thought-provoking perspective on autonomy, drawing parallels between protections for minors and potential protections for elderly consumers. He questioned whether classifying elderly consumers as vulnerable would risk imposing guardianship-like restrictions that limit their independence. His central question was challenging: Can legal protections for elderly consumers be effectively implemented without undermining their autonomy? Dr. Oosterhuis explored the potential consequences of designating elderly consumers as legally vulnerable, questioning whether such classification would justify interventions that compromise personal freedoms—such as requiring third-party approvals for financial transactions. This, he argued, could conflict with fundamental principles of autonomy in private law.

Professor Tedeschi acknowledged this tension, noting that excessive safeguards could lead to paternalism. However, she proposed focusing regulation on imposing stricter obligations on traders rather than restricting consumer freedoms. Drawing a parallel to urban planning that accommodates individuals with disabilities, she envisioned a consumer landscape designed to prevent exploitation while maintaining autonomy. Rather than limiting elderly consumers' choices, policymakers should focus on enforcing fair commercial practices that prevent deceptive marketing and financial exploitation.

Through the Lens of Vulnerability Theory

Kate O'Reilly introduced a structural perspective, drawing from her work at Emory University with Martha Fineman's vulnerability theory. She challenged the notion of vulnerability as an individual trait, instead positioning it as a feature of societal structures that shape human dependency. Dr. O'Reilly urged scholars to rethink legal responses beyond consumer transactions and consider systemic changes in social institutions that shape financial stability and market interactions for the elderly. She highlighted the state's fundamental role in mitigating dependency by restructuring financial and consumer regulations to accommodate aging populations. Rather than focusing solely on individual consumer vulnerabilities, she emphasised that legal scholars and policymakers should examine how institutional structures—such as financial markets, healthcare systems, and social welfare policies—either alleviate or exacerbate consumer risks for the elderly.

Professor Tedeschi welcomed this broader perspective, particularly regarding financial vulnerability. She highlighted how financial institutions often fail to apply proper risk assessments for elderly consumers, leading to over-indebtedness and financial exploitation. She emphasised the need for better legal mechanisms to prevent predatory financial practices while preserving autonomy, pointing to existing gaps in financial regulation that allow elderly consumers to become overexposed to high-risk investments through familial pressures or misleading financial advice.

An Intersectionality Theory Approach to Vulnerability?

Mindy Nunez Duffourc challenged a binary vision of vulnerability, noting that it doesn't necessitate a complete loss of autonomy. Instead, she suggested there's an intermediate stage where individuals may face challenges but still retain significant agency. Bringing in Kimberlé Crenshaw's theory of intersectionality, Dr. Nunez Duffourc also critiqued the traditional single-axis approach to vulnerability. Just as race and gender discrimination cannot always be separated into distinct categories under Crenshaw's theory, she posed that vulnerability in law should not be reduced to isolated classifications. Instead, vulnerabilities may intersect and compound, shaping individuals' experiences in unique ways. Dr. Nunez Duffourc suggested that vulnerability could be understood similarly: rather than treating elderly individuals as a distinct category, the law should recognise the layering of vulnerabilities that different individuals experience.

Professor Tedeschi responded by questioning the legal feasibility of moving away from categories altogether. While the idea of vulnerability as layers is compelling, she noted that legal systems rely on concrete terminology. Laws use defined categories—such as age or disability—to establish protections and rights. Yet she acknowledged that the law could evolve to accommodate a layered approach. One possibility is reinterpreting existing legal frameworks, such as the Unfair Commercial Practices Directive (UCPD), which references age as a factor. Rather than treating age as a strict category, Professor Tedeschi asked whether it could be understood as an example within broader vulnerability layers.

Looking Ahead

As the discussion concluded, it became evident that the legal recognition of elderly consumers' vulnerability remains a complex and evolving issue. Should consumer protection laws focus on age as a specific category, or should they adopt a more flexible, layered approach? Should regulatory interventions prioritise traders' obligations over consumer classifications? And how can we design a legal framework that protects without infantilising?

Professor Tedeschi 's vision remains clear: consumer law must evolve alongside societal changes. As life expectancy increases and digital markets become more pervasive, legal scholars, policymakers, and institutions must collaborate to create consumer protection frameworks that are fair, adaptive, and inclusive. She stressed the importance of balancing autonomy and protection, ensuring that legal interventions do not reinforce stereotypes of elderly consumers as inherently incapable of making informed choices.

You can read more about Professor Tedeschi’s work on this topic in her new article here: Rethinking the ‘Average-Vulnerable’ Dichotomy: The Case for Emphasizing Elderly Vulnerability in the UCPD