DAIRY INDUSTRY IN THE SPOTLIGHT

On 27 October 2016, the Treasurer issued a notice requiring the ACCC to hold an inquiry into the Australian dairy industry. The ACCC released its interim report on 30 November 2017 and is seeking industry feedback by 31 January 2018 with its final report to be submitted by 30 April 2018.

The ACCC report pointed to several features within the dairy industry said to be problematic, including imbalances in bargaining power and risk allocation, potentially unfair contract terms, and a lack of transparency about matters critical to farm production. The ACCC expressed concern that the recently developed Voluntary Dairy Code has limited effectiveness in addressing issues that cause detriment in the long term and recommended, among other things that a mandatory code to address the issues identified be considered.

The inquiry followed changes to prices paid by Australia's two largest dairy processors for raw milk, which were alleged to have significantly reduced the income of more than 2000 dairy farmers and long-standing concerns that low retail prices for milk were negatively affecting the dairy industry.

GIFT CARDS TO HAVE A MINIMUM EXPIRY OF THREE YEARS

The New South Wales Fair Trading Amendment (Ticket Scalping and Gift Cards) Bill 2017 received Assent on 24 October 2017. The Act prohibits the sale of gift cards with an expiry date that is earlier than three years after the date of sale and prohibits the imposition of any charge or fee that reduces the value of the gift card post-sale. The changes will take effect from March 2018.

These changes bring New South Wales in line with a number of overseas regimes, such as the United States, where a number of states have either a national mandatory expiry period of five years, or have banned expiry dates on gift cards altogether.

The Australian gift card industry is estimated to be worth $2.5 billion annually with approximately 34 million gift cards sold each year. In a 2012 review, the Commonwealth Consumer Affairs Advisory Council expressed the view that expired gift cards and the value left on gift cards at the time of expiration was a transfer of wealth from the consumer to a business. Despite this, the council found that there was no significant evidence of systematic harm for consumers. With Fair Trading NSW having received more than 1300 complaints about gift cards since 2012, the NSW Government considered that the issue remained persistent and required legislative attention.

ACCC CONTINUES TO TAKE ACTION ON CONSUMER LAW

The past month saw the ACCC take action in a number of consumer protection matters.

The ACCC initiated Federal Court proceedings against GSK and Novartis, alleging they made false or misleading representations in the marketing of Voltaren Osteo Gel and Voltaren Emulgel pain relief products. This case follows proceedings in 2016 against Reckitt Benckiser, which was fined $6 million for making misleading representations about its Nurofen specific pain products.

The ACCC alleges that Novartis and GSK represented that Osteo Gel was specifically formulated for treating osteoarthritis conditions, and was more effective than Emulgel to treat those conditions, when the two products are identically formulated. The ACCC is seeking declarations, injunctions, pecuniary penalties, a publication order, the imposition of a compliance program and costs.

November also saw the ACCC institute proceedings in another unfair contract terms matter, this time involving hair loss treatment company, Ashley & Martin. ACCC Commissioner Sarah Court noted that the clauses in question 'committed customers to paying the full contract price before the customer had a proper opportunity to consider medical advice about the treatment'. After signing standard form agreements containing these provisions, consumers had two days to consider medical advice, after which time they could not opt out of the contract. The ACCC is seeking a declaration in this matter that the relevant terms are unfair.

In other consumer law news, the ACCC has brought proceedings against Jayco for allegedly:

  • engaging in unconscionable conduct by obstructing consumers from obtaining remedies for defective caravans; and
  • making false or misleading representations to consumers in respect of their rights to obtain remedies under the Australian Consumer Law.

This case is a further example of the ACCC alleging unconscionable conduct in the context of a consumer guarantees matter.

Finally, the ACCC has successfully obtained penalties against Aveling Homes, with the Perth-based building company being ordered to pay $380,000 for misleading conduct and the company's Group Sales and Marketing Manager ordered to pay $25,000 for being knowingly concerned in the infringing conduct.

The Federal Court found that Aveling Homes held back negative reviews from its review website, giving a more favourable impression of its services. This is the second recent decision regarding manipulation of online reviews. Last month, the Federal Court found that Meriton had systematically sought to limit negative reviews of Meriton properties on TripAdvisor.

ACCC OPPOSES BP'S ACQUISTION OF WOOLWORTHS PETROL STATIONS

On 14 December 2017, the ACCC announced that it intends to oppose the proposed acquisition by BP Australia of Woolworths' network of retail service station sites.

This is the first acquisition that the ACCC has opposed in over two years (although a number were withdrawn following a negative Statement of Issues) and has been heralded by the ACCC Chairman as 'the most significant merger investigation and decision the ACCC has considered in 2017'.

Woolworths operates 531 petrol sites. BP supplies fuel to approximately 1400 BP-branded service stations throughout Australia and sets the price at roughly 350 sites.

The ACCC considered that the proposed acquisition was likely to substantially lessen competition in the retail supply of fuel by making the price jumps in the retail fuel price cycles quicker, larger and more coordinated. The ACCC noted that:

  • Woolworths is a vigorous and effective competitor which has an important influence on fuel prices and price cycles in many markets throughout the country; and
  • BP prices are significantly higher on average than Woolworths' prices in the major capital cities, including that BP generally raises prices faster than Woolworths during the price increase phase, and is slower to discount during the price discount phase.

The decision follows a Statement of Issues released by the ACCC in August 2017. Interestingly, the Statement of Issues only raised issues which may substantially lessen competition ('amber light' issues). This marks the first merger since 2012 that the ACCC has opposed after raising only 'amber light' issues in the Statement of Issues.

Following the decision, BP Australia president Andy Holmes noted that '[BP] are still highly committed to the transaction and [he] will be choosing an option to make sure we end up in a forum that will make the decision based on the evidence'. Such forum could include either:

  • the Australian Competition Tribunal under the new authorisation regime (which now means that authorisation would first have to be sought from the ACCC before an appeal to the Tribunal); or
  • the Federal Court, by proceeding with the acquisition and forcing the ACCC to seek an injunction.

INQUIRY INTO DIGITAL PLATFORMS

On 4 December 2017, the Federal Government directed the ACCC to commence an inquiry into digital platform providers such as Google and Facebook.

The terms of reference of the Federal Government require the ACCC to examine the impact of digital search engines, social media platforms and digital content aggregation platforms on media and advertising; including, but not limited to:

  • whether digital platforms exercise market power in commercial dealings with creators of journalistic content and advertisers;
  • whether digital platforms impact choice and quality of news and journalistic content;
  • the impact of longer-term trends on competition in media and advertising (such as innovation and technological change); and
  • the impact of information asymmetry between digital platforms, advertisers and consumers, and its effect on competition.

The ACCC is required to submit a preliminary report to the Treasurer by early December 2018, and a final report by early June 2019. The ACCC will release an issues paper early next year which will outline matters relevant to the inquiry and call for public submissions. The ACCC will also conduct public and private hearings next year.

The inquiry follows the media law reforms of the Federal Government from September 2017 which scrapped the 'two out of three rule' and the 'reach rule' and broader industry changes, including:

  • advertising revenue increasingly shifting towards digital platforms but the content still predominantly being generated by traditional media outlets such as newspapers and television;
  • a global expectation that digital platforms can play a role in curbing the dissemination of 'fake news' and 'hate speech'; and
  • generally limited awareness on how digital platforms operate in relation to advertising and content distribution.

FOXTEL AND FOX SPORTS SCORE ACCC APPROVAL FOR CORPORATE RESTRUCTURE

The ACCC has decided to not oppose the merger of Fox Sports and Foxtel after finding the transaction would not substantially lessen competition. The transaction will bring Foxtel and Fox Sports together under common ownership, with News Corporation holding 65 per cent of the merged entity and Telstra holding the remaining 35 per cent interest.

The ACCC examined the competitive effects of the transaction in a number of potential markets. These included markets relating to acquiring sports and non-sports content, supplying subscription audio visual content and the wholesale and/or retail supply of fixed line and mobile broadband and voice services.

The ACCC concluded the merger was unlikely to substantially lessen competition in any of the above potential markets. The ACCC found that Telstra and Fox Sports are not close competitors in acquiring content and the merged firm will continue to face competitive constraints. These constraints include current and potential new entrants, options for rights holders to supply content directly to consumers and the bargaining power of premium sports rights holders. In telco markets, the ACCC considered that certain agreements restricting Telstra's competitors from including Foxtel's digital products in their offerings would not substantially lessen competition as their customers could still access Foxtel's digital products directly or through non-telco agents.

The ACCC's analysis provides useful insight into its approach when considering mergers in the evolving media and content markets. These markets have changed over the last several years with the entry of new and significant players and technological changes impacting the way content is accessed by consumers. Relevantly, the ACCC recently released its updated Media Merger Guidelines which outline its approach and potential areas of focus in media mergers.