Welcome to the very first edition of Shop Talk – a new quarterly wrap up of key legal developments in the Australian retail and consumer sector from Gilbert + Tobin’s market-leading Competition, Consumer + Market Regulation team. 

With enforcement action on the rise, ongoing regulatory change and the willingness of courts to impose higher penalties, compliance with the Australian Consumer Law (ACL) remains as important as ever. We’re pleased to bring you the latest developments to help your consumer-facing business to not only tackle compliance readiness but also help shape business strategy to achieve all-round better outcomes for your business and consumers alike.

Some major developments are in the works, particularly in terms of tackling greenwashing and unfair contract term reforms. As set out in our wrap up of some recent cases, the Australian Competition and Consumer Commission (ACCC) continues to not shy away from taking enforcement action including on misleading or deceptive conduct and unconscionable conduct (albeit with some mixed success on the latter). We also cover the ACCC’s recently announced product safety priorities for 2023-24 as a timely reminder to brush up on the key responsibilities.

So, take a moment to catch up on the latest key developments that you need to know.

'Greenwashing' guidance from the ACCC is here. It's time to go Green the right way

‘Greenwashing’ continues to cause the ACCC serious concern, with its focus on environment and sustainability claims having been reaffirmed this year by the ACCC as a key compliance and enforcement priority for 2023-24. Most recently, on 14 July 2023, the ACCC issued its draft guidance for businesses making environmental and sustainability claims, setting out eight good practice principles to ensure that businesses comply with their obligations under the ACL and do not mislead consumers.

Read more: ACCC issues its draft greenwashing guidance for businesses

Unfair contract terms to get some serious financial bite

From 10 November 2023, unfair contract terms in standard form contracts that your business enters into or varies with consumers or small businesses could cost your business millions. For the first time, courts will have the power to impose penalties for unfair contract terms to the tune of the greater of: $50 million, 3 times the value of the benefit obtained from the conduct if that can be determined; or if the value of the benefit cannot be determined, 30% of adjusted turnover during the breach turnover period. With November not too far away it is more important than ever for affected businesses to be asking themselves the critical questions about their contracts to ensure they can get their house in order now.

Read more: Unfair contract terms: it’s time to get your house in order

Recent/new ACL enforcement cases wrap up

From Mazda’s ‘appalling’ but not unconscionable customer service to the ACCC nipping ‘local florist’ claims in the bud, it’s clear that the ACCC continues to be busy with prosecuting alleged consumer law transgressions in the Courts. Recent decisions in the Mazda and Captain Cook College cases shed light on what is required to meet the high bar for proving unconscionable conduct, the penalty decision in the Booktopia case demonstrates the very high price companies risk paying for misleading customers about their statutory rights and we cover some of the recently commenced misleading or deceptive conduct cases worth keeping your eye on.

Read more: ACCC Consumer Law Cases: 2023 Wrap-Up

Time for businesses to brush up on their product safety responsibilities 

The ACCC recently released its 2023-24 product safety priorities, setting out how the ACCC intends to focus its compliance and enforcement activity to raise awareness of, and minimise, the risks posed by unsafe goods. These include product safety issues for young children, infant sleep goods and the risks of buying secondhand goods sold online. This presents a good opportunity for suppliers to brush up on their product safety obligations, including what they need to do to remain compliant if faced with a recall, ban or safety or information standard obligations.

Read more: Play it safe: Time to brush up on compliance as the ACCC releases 2023-24 product safety priorities

We hope you enjoyed our first edition. 

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