Staying ahead: ACCC’s enforcement priorities for 2024-25 unveiled with a cost of living and digital economy focus

With this year marking the 50th anniversary of Australia’s competition and consumer law and the ACCC as regulator and the current cost of living pressures that are at play, the ACCC will champion the law and its economic and social objectives. This will see the ACCC squarely focus on competition and consumer issues relating to cost of living and the digital economy. The ACCC will also continue to develop and expand upon some of its priorities from last year, with unfinished business in the areas of sustainability and unfair contract terms. Much like in 2023, the ACCC is set to continue to use the toolkit available to it in an expansive and strategic manner, taking a more flexible approach to enforcement. The ACCC will also be fostering compliance through education and also advocating for regulatory reform to strengthen the actions it can take to better promote competition and protect consumers.

Specific priorities

The ACCC has announced a broad range of far-reaching priorities for the year ahead. These include the following specific priorities:

1. Competition, consumer, fair trading and pricing concerns in the supermarket sector, with a focus on food and groceries (as essential goods). The ACCC will be looking at supermarket pricing and will ensure consumers are not misled and that claims about pricing specials, like “was/now”, discounts and advertised prices are “truthful and accurate”. This will be separate to the ACCC’s 12-month supermarkets price inquiry that has commenced with the Issues Paper and online consumer survey released on 29 February 2024 – see link to the ACCC’s Issue Paper. The ACCC Chair has said the pricing issues to be looked at in the inquiry will need careful consideration.
2. Consumer, product safety, fair trading and competition concerns in relation to environmental claims and sustainability, expanding upon its focus on misleading and deceptive environmental claims in 2023. With a dedicated environmental taskforce, the ACCC has been building up its capabilities in this area and is also looking to international regulators for guidance. Having also spent considerable time and resources developing industry guidance for “green” claims that was published in December 2023, we’re expecting the ACCC to take the strong enforcement action in this area that was expected in 2023. The ACCC will also prioritise product safety and sustainability, especially around electrical products.
3. Consumer protection and fair trading issues in the digital economy including misleading or deceptive conduct in influencer marketing, online reviews, in-app purchases and price comparison websites, given these are key to reaching consumers and influencing their purchasing decisions. There will be a special focus on the video gaming industry and the “dark patterns” used to manipulate consumers. To read more about the ACCC’s recent internet sweep on influencer marketing and online reviews, see our article.
4. Unfair contract terms in consumer and small business contracts will continue to be a focus again this year, with there being a number of matters currently under investigation. The ACCC has specifically called out as problematic clauses that allow for unilateral variation or impose unreasonable fees and penalties.
5. Improving compliance by business with the consumer guarantee regime given that complaints to the ACCC about business behaviour in this space far exceeds all others. This year, there will be a specific focus on consumer electronics and misconduct by retailers in relation to the delivery times for online purchases. The ACCC has only just commenced legal proceedings against Mosaic Brands for its alleged failure to meet advertised delivery times – see link to the ACCC media release.
6. Competition and consumer protection issues in essential services with a focus on telecommunications, electricity, gas and financial services, especially misleading conduct in relation to pricing and product claims.
7. Competition and consumer issues in the aviation sector.
8. Improving compliance by NDIS providers with their obligations under the Australian Consumer Law.

Enduring priorities

On top of these specific priorities, the ACCC will focus on the following enduring priorities:

• Cartel conduct, with the ACCC continuing its broad and robust program against cartels. The ACCC continues to gain real traction in this area with some successful civil and criminal enforcement outcomes in 2023. Just last month, the Federal Court handed down the second largest corporate fine and also significantly, custodial sentences (including intensive correction orders with community service components) and significant personal fines to the former Bingo and Aussie Skips’ CEOs who had admitted their involvement in a waste processing cartel in Sydney in mid-2019.
• Anti-competitive agreements and practices and the misuse of market power.
• Product safety issues which have the potential to cause serious harm to consumers.
• Conduct that impacts vulnerable or disadvantaged consumers and conduct impacting the welfare of First Nations Australians.
• For the first time, ensuring that the protections of competition and consumer laws and small business industry codes of conduct apply to small businesses and the agriculture sector have been listed as an enduring priority.
• Scams, with the ACCC continuing to support the work of the National Anti-Scam Centre with a joint inter-governmental taskforce.

A link to the ACCC’s summary of its 2024-25 compliance and enforcement priorities is available here Compliance and enforcement priorities | ACCC.

Key take aways

• Gina Cass-Gottlieb (together with her senior team at the ACCC including Liza Carver and Catriona Lowe) has well and truly settled into her role as ACCC Chair and unsurprisingly is showing herself to be a formidable Chair and a fearless defender of the national interest as well as the interests of consumers and small business. She is also putting her stamp on the regulator as she continues to grow the ACCC’s social welfare and consumer protection focus.
• As the ACCC celebrates its 50th birthday, the ACCC’s work and remit is broad, diverse and continues to grow, with the ACCC regulating around 24 industries in 2024, compared to 10 in 2010.
• The ACCC is having lots of success with its competition law proceedings, with total fines and penalties awarded in competition law cases decided in this financial year to more than $100 million, the highest total ever achieved by the ACCC. This serves to reinforce the need for business to prioritise effective compliance with competition law, as well as the Australian Consumer Law. The ACCC has provided fair warning about the perils of not doing so.

Other things to expect from the ACCC in 2024

• The ACCC’s eighth interim report of the Digital Platform Services Inquiry in relation to data products and services supplied by third-party data brokers is set to be released on 31 March 2024.
• To supplement the green claims guide for business released by the ACCC in December 2023, separate guidance for businesses will be published on specific environmental emission and offset claims, as well as the use of trust marks, in early 2024.
• As flagged by the ACCC late last year, “green agreement” exemption guidelines are set to be released to provide guidance on the competition law issues and relief that may be available for businesses seeking to collaborate on green issues (for example, by way of an authorisation). The NZ Commerce Commission released their guidelines on this late last year so we’re playing catch up on this in Australia.
• An updated ACCC immunity and cooperation policy for cartel conduct is also likely to be published this year following the ACCC’s review of the policy in 2023.
• Consultation on the current product safety mandatory reporting guidelines for suppliers are set to close so updated guidance should be out later this year.

If you have any questions about what this means for you and to keep on top of regulatory changes, please contact the Addisons Competition, Consumer & Antitrust team.