In recent times, the Australian Competition and Consumer Commission (ACCC) has gone after some big names for breaches of the Australian Consumer Law – including Harvey Norman, Optus and Nurofen.

Once the dust settles after an ACCC investigation, it may be tempting to return to business as usual. However, this is the time when businesses must make sure that their consumer practices are compliant. If the ACCC decides to come knocking again, the consequences may be even worse the second time around.

Get the Best Outcome the First Time

If you become aware that the ACCC is investigating your business, it is important to speak with a consumer law specialist about your options as soon as possible. The ACCC uses a range of tools in exercising its enforcement functions. The enforcement route chosen by the ACCC may have significant implications for your business. For example:

  • If you are asked to pay an infringement notice, this does not mean that you have to admit to breaching the law;
  • If you give court-enforceable undertakings, you might restrict the future conduct of your business; or
  • If you fail to cooperate with an investigation, the ACCC may choose to commence proceedings.

By seeking the assistance of someone who has experience dealing with the ACCC, you will improve your chance of reaching a positive outcome that takes into account your business’ circumstances.

You can read more about the ACCC’s current enforcement policy here.

After the ACCC: What Next?

Whatever outcome is reached, the ACCC will expect the business to take active steps to minimise the risk of consumer law breaches in the future. Here are some common measures that a business should consider:

  • Ongoing compliance training: It is likely that some staff members don’t fully understand their obligations under the Australian Consumer Law. You can address this knowledge gap by rolling out a compliance training program in relevant areas of the organisation, such as the marketing team and employees who deal directly with consumers.
  • Advertising Clearance: It is worthwhile putting in place a formal process for approving advertising materials. This process can be conducted internally or through an external lawyer. This measure is particularly important if the ACCC investigation related to misleading or deceptive conduct.
  • Contract review: After an ACCC investigation, it may be useful to perform a general check-up of all your contracts with consumers to identify potential risks and to make any necessary amendments.

By putting these measures in place, it is less likely that your business will breach the Australian Consumer Law in the future. In fact, the ACCC will often require businesses to take these types of measures as part of the original investigation’s resolution.

More importantly, if you have further consumer law issues, the ACCC is first likely to check what you have done since the original investigation. The ACCC will be more understanding if you have made a genuine effort to implement changes. By contrast, the ACCC will be unimpressed if the same problems recur and you have taken no steps to improve the compliance record of your business.

Questions? Ask our consumer lawyers on 1300 544 755.

Thomas Kaldor

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