The ACCC recently released its 2014 compliance and enforcement policy. This policy gives some insight into current ACCC investigations as well as the focus areas for the coming year.
Key trends for this year include:
- a continued focus on the marketing and pricing practices in the telecommunications, energy, supermarket and fuel retail industries. In particular, the ACCC has issued a stern warning about ‘discount off’ advertising claims – an old chestnut that is again raising its head;
- a renewed focus on the welfare of small business in a competition and consumer law context;
- a switch in focus from unconscionable conduct to unfair contract terms; and
- continued focus on consumer guarantees, particularly extended warranties.
The ACCC policy makes it clear that the ACCC will always focus on areas that it considers have the greatest potential for consumer harm, including anti-competitive agreements, cartel conduct, misuse of market power and product safety.
Notably, absent from the policy is mention of criminal prosecutions for cartel conduct (the ACCC is yet to bring a criminal case since criminalisation of cartel conduct was introduced in 2009). The ACCC is, however, currently engaged in court proceedings in relation to both cartel conduct and misuse of market power, and it promises to institute further proceedings in 2014.
We can expect that in addition to its stated focus areas, the ACCC will be heavily involved in the pending ‘root and branch’ review of Australian competition law.
In detail, the ACCC has identified nine priority areas:
- consumer protection in the telecommunications sector and energy sector with a particular focus on savings representations (known as ’discounts off what?’);
- emerging consumer issues in the online marketplace, particularly issues in relation to comparator websites and drip pricing (incremental disclosure of additional fees and charges over an online booking process);
- competition and consumer issues in highly concentrated sectors, in particular in the supermarket and fuel sectors;
- disruption of scams that rely on building deceptive relationships and which cause severe and widespread consumer or small business detriment;
- complexity and unfairness in consumer or small business contracts;
- credence claims (claims that a product has specific desirable characteristics), particularly those with the potential to adversely impact the competitive process and small businesses;
- misleading carbon pricing representations;
- the ACL consumer guarantees regime and particularly representations made about a consumer’s rights when buying products, including representations made in the context of the sale of extended warranties; and
- consumer protection issues impacting on Indigenous consumers.