Advertising and Marketing Series: The Australian Consumer Law

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• What Does the ACCC Do?
• Section 18: Misleading and Deceptive Conduct
• Conclusion

At one point, you will have read or heard the media refer to the Australian Competition & Consumer Commission (the ACCC), or Australia’s “competition watchdog.” The ACCC expends a significant amount of its time and energy towards regulating the activities of big businesses and ensuring they compete fairly. It also, however, plays an important role protecting consumers. In this six-part series, we comprehensively explore the relevant issues to advertising and marketing businesses, first beginning with what is the Australian Consumer Law, and why is it necessary.

What Does the ACCC Do?

The ACCC enforces the Competition and Consumer Act 2010 (Cth) (“CCA”). Under Section 2 of the CCA, its stated objective is to enhance the welfare of Australians by promoting competition and fair trading and providing for consumer protection.

Schedule 2 of the Act is called the Australian Consumer Law (ACL). Importantly, consumers benefit from parts of the CCA prohibiting anti-competitive conduct in the marketplace. Also, Part IVB which provides for industry codes operates ultimately for the consumers’ benefit.

Section 18: Misleading and Deceptive Conduct

Section 18 of the ACL prohibits misleading and deceptive conduct by corporations. Although the ACL is a comprehensive and lengthy statute, one-quarter of complaints lodged by the ACCC relate to alleged breaches of these two lines. Section 18 is then by far the most notorious provision contained in the CCA, both in terms of public familiarity and the volume of litigation. This section is designed to protect consumers, however, it is noteworthy that competitors more commonly invoke its use.

The two most encountered sections of the ACL are as follows:

• Chapter 2 outlining General Protections including misleading and deceptive conduct, unconscionable conduct and unfair contract terms, and
• Chapter 3 outlining unfair practices, consumer transactions, product safety, information standards and manufacturer’s liability.

Advertising, with the misuse of fine print and deceptive pricing, continues to be an enforcement priority when contemplating consumer protection. Misleading and Deceptive conduct in advertising then becomes a particular focus. In this series, we unpack unfair practices, particularly misleading and deceptive conduct in advertising, selling and marketing. We will turn to consider what is illegal in advertising and marketing in our next article.

Conclusion

Should you have any questions in the meantime, or require advice about advertising and marketing law, please get in touch! LegalVision’s experienced team of commercial lawyers would be delighted to assist.