Environmental claims, unfair contract terms and digital marketing featured in ACCC’s top priorities for 2023-24

On 7 March 2023, the ACCC Chair, Gina Cass-Gottlieb, announced the ACCC’s compliance and enforcement priorities for 2023-24. These priorities make it clear that the ACCC is very much seeking to “demonstrate continuity” by building on the work it started last year and doubling down on its 2022-23 priorities.

That said, the ACCC has provided a clear warning that it will take strong enforcement action in the coming year in relation to unsubstantiated environmental claims, in seeking penalties for unfair terms in consumer and small business contracts and in prosecuting “dark patterns” is used in digital marketing.

Priority areas for 2023-24

The ACCC has announced it will fundamentally continue to focus on many of the key areas that were part of its work program last year with some slight changes in nuance. These 2023-24 priorities are as follows:

  1. There will be a continued focus on consumer and fair trading concerns in relation to environmental claims and sustainability. You can read more about this issue in our other article ACCC Gets Mean on Green: Lessons from the regulator’s sweep of environmental claims. The ACCC Chair has said it will be publishing industry guidance later this year, followed by strong enforcement action.
  2. Important changes to the law on unfair contract terms in the Australian Consumer Law take effect in November 2023 which for the first time mean these terms will be prohibited and expose businesses to significant pecuniary penalties. On the back of this, the ACCC is prioritising compliance with these laws for both consumer and small business standard form contracts. For more information about what the new unfair contract term laws will look like come November 2023, see our previous article Labor delivers on its promise of penalties for unfair contract terms.
  3. Manipulative or deceptive advertising and marketing practices in the digital economy will continue to be a target area, including manipulative sales strategies or “dark patterns” on a range of platforms including Instagram, TikTok and Snapchat (like “subscription traps” for paid services, manipulation of online reviews and search results and social media influencers who fail to disclose their paid endorsements). For more information on the recent social media sweep by the ACCC in the fashion, beauty, travel, food and beverages and health and fitness sectors, see our previous article ACCC announces a social media sweep targeting influencers.
  4. There will be a continued and enhanced focus on pricing and supply of essential services, with a specific focus on energy and telecommunications in light of the rising cost of living. The Chair announced that a number of investigations are close to being completed and enforcement action in this space is on the immediate horizon.
  5. Competition and pricing issues in gas markets will be a key focus, including compliance with the price cap order and other legal obligations for wholesale gas markets.
  6. Promoting competition and investigating allegations of anti-competitive conduct in the financial services sector will continue to be a priority, with a specific focus on payment services. This follows the ACCC’s commencing an inquiry into deposit interest rates and rate setting decisions of banks last month which will consider how consumers interact with these markets and what factors lead to “stickiness” and switching barriers for consumers.
  7. Exclusive arrangements by firms with market power that impact competition will continue to be targeted as the ACCC remains concerned about harm that can be caused by players with market power which can increase barriers to entry or keep rivals at bay by preventing them from entering a market.
  8. Competition and consumer issues relating to the digital platforms remain a continuing priority. The ACCC’s sixth interim report, which focuses on social media platforms, due to be released by the end of March 2023.
  9. Scam detection and disrupting scams will be a new key priority for the ACCC, including supporting the implementation of the National Anti-Scam Centre.
  10. Empowering consumers and improving industry compliance with consumer guarantees will also remain a priority given the high number of complaints the ACCC receives, with a focus on high value goods including motor vehicles and caravans.
  11. Ensuring small businesses receive the protections of the competition and consumer laws and small business industry codes of conduct will continue to be a focus area, including in agriculture and franchising (eg. Dairy Code, Horticulture Code, Franchising Code).
  12. Consumer product safety issues for young children will continue to be a focus given how vulnerable children are from unsafe products. The ACCC is planning compliance, enforcement and education initiatives over 2023-24 with a specific focus on high-risk safety issues including button battery operated products, sleeping products, toys and toppling furniture.
  13. Competition and consumer issues in global and domestic supply chains will also continue to be a focus, especially issues with transport and logistics.

Enduring priorities

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

  • cartel conduct, with the ACCC taking both a proactive and reactive approach. The ACCC has recently gained real traction in this area with some successful criminal enforcement outcomes which have seen the courts hand down suspended prison terms and intensive correction orders to individuals involved in the foreign exchange and pharmaceutical cartels
  • anti-competitive agreements and practices and the misuse of market power
  • serious product safety issues
  • conduct that impacts vulnerable or disadvantaged consumers and conduct impacting the welfare of First Nations Australians, with a broader focus on metro and peri-urban areas rather than just regional areas.

A summary of the ACCC’s 2023-24 compliance and enforcement priorities is available here.

Key takeaways

  • Clarity and accuracy is required for environmental and sustainability claims and they must not overstate benefits or omit relevant information. Make sure you have sufficient substantiation for your claims so you are not caught up in the ACCC’s clear enforcement net.
  • With the new prohibition on unfair contract terms taking effect in November 2023 now is the time to review and update your standard form consumer and small business contracts so you have your house in order.
  • Law reform remains very much on the ACCC’s agenda, with the Chair noting it will continue to push for the introduction of a general, economy-wide unfair trading prohibition as well as reform to the consumer guarantee regime and merger control laws.

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.

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