ACCC’s 2023 enforcement priorities – what you need to know
2023 will see the Australian Competition and Consumer Commission (ACCC) focused on continuing its existing goals and building on last year’s priorities.
While many may have thought that the new ACCC Chair would use today’s speech to stamp her authority on the ACCC and its enforcement priorities, there were no new or surprising announcements. It’s clear that 2023 will see a continuation of the ACCC’s work over the past several years – focusing on broad economy-wide issues that impact a significant percentage of Australian consumers.
In her first speech at the annual ACCC’s annual enforcement and compliance policy update hosted by the Centre for Economic Development for Australia (CEDA), Ms Gina Cass-Gottlieb emphasised an intention to focus on building on last year’s enforcement and regulatory priorities set by her predecessor, Mr Rod Sims. These priorities will be guided by the ACCC’s enduring concern for conduct impacting First Nations consumers, cartel conduct and anti-competitive conduct more broadly, as well as information obtained following what Ms Cass-Gottlieb described as,
extensive feedback and engagement with many people and organisations, as well as complaints data, public discourse and international developments, among other information sources.
Ms Cass-Gottlieb’s speech emphasised many of the ACCC’s successes in 2022 although notably, did not mention the higher penalties that will apply to consumer law breaches from November 2023 or any desire for further merger law reform.
2023 enforcement priorities
Environmental and sustainability claims – ‘greenwashing’
Last year, the ACCC was growing increasingly concerned as to the way businesses were falsely promoting environmental or ‘green’ credentials to capitalise on growing consumer preferences. Our recent article discusses these concerns in greater detail. In those circumstances, it comes as no surprise that Ms Cass-Gottlieb confirmed the ACCC’s role in ensuring businesses are honest in their claims as to the environmental impacts of the goods and services that they supply. She observed that,
Misleading claims about environmental or sustainability credentials have an impact right across the economy. Consumers, shareholders and governments are looking for legitimate change not ‘smoke and mirrors’ when it comes to environmental initiatives implemented by businesses.
Earlier this month, the ACCC announced the results of its 2022 internet sweep for greenwashing claims that indicated that 57% of the businesses reviewed made concerning claims about their environmental credentials. The ACCC is particularly concerned with:
- vague environmental claims that are difficult to verify
- insufficient evidence of green claims
- the use of third-party certifications that either don’t exist or are used in a confusing manner
- broad claims like ‘environmentally friendly’, ‘green’, or ‘sustainable’ without reliable evidence such as “scientific reports, transparent supply chain information, reputable third-party certification”.
Ms Cass-Gottlieb singled out the cosmetic, clothing and footwear and food and drink sectors as being particularly problematic – suggesting several brands operating in these areas are already under investigation and may face prosecution. We can also expect to see the ACCC publish economy-wide guidance material for ’green‘ claims as part of its educational role, together with the establishment of a new internal task force specifically targeting challenges caused by the transition to a more sustainable economy.
Social media, influencers and 'dark patterns'
The ACCC will focus on cleaning up a wide range of unfair and deceptive practices in connection with digital services, particularly fake testimonials, manipulative algorithms and dark patterns. Part of this focus will involve enforcement activity against digital platforms, influencers and the ACCC’s ongoing review of digital platforms. Interestingly, in her speech, Ms Cass-Gottlieb did not expressly mention the possibility of new ’unfair practices‘ laws, but during the subsequent Q&A session, indicated the ACCC’s current thinking regarding what conduct might constitute unfair practices, including:
- free subscriptions to online services which, upon expiry and becoming paid subscriptions, are designed to be difficult to cancel
- online transactions, which require clicking through multiple screens in a confusing way.
The ACCC renewed last year’s commitment to addressing pressures on consumers due to the pricing and supply of essential services, such as telecommunications and energy. The Commission will be focused on the “effects of anti-competitive conduct that reduce competition in the supply of essential services, restricting entry or expansion of competitors, reducing choice and contributing to price escalation pressures.” In doing so, Ms Cass-Gottlieb highlighted the ACCC’s intervention in connection with Telstra’s registration of radiocommunications sites in low band spectrum that it was concerned would adversely impact Optus’ 5G national roll-out plans. As well as referencing its success against several telcos for misleading pricing claims, Ms Cass-Gottlieb indicated that there are several matters still under investigation in the essential services sectors, and she expects ongoing enforcement success in the area.
The ACCC is undertaking an inquiry into retail deposit markets examining how banks set interest rates for deposit products, how consumers interact with these markets and the factors that may affect consumer choice in considering whether to switch between products. The ACCC will continue its work in assisting the Federal Government in the development of its strategic plan for the payments system. Finally, the ACCC will press on with its claims that Mastercard misused its market power to deter merchants from processing significant debit card volumes through the eftpos network despite it being cheaper as part of the Reserve Bank’s least-cost routing initiative.
We reported last year in our annual ACCC 2021 Year in Review that the ACCC had been tasked with monitoring and enforcing the temporary cap on wholesale gas prices. As part of this ongoing role, earlier this year, the ACCC published interim compliance and enforcement guidelines and commenced discussions with industry participants to clarify areas of uncertainty. No doubt these clarifications will be welcomed by the industry given the widespread complaints that the guidelines were unclear. The ACCC will also be working with the Federal government to develop a mandatory code of conduct for gas producers.
Unfair contract terms
As we predicted in our ACCC 2022 Year in Review, the ACCC will prioritise enforcement of the new 'unfair contracts regime', including for the first time penalties for businesses that include such terms in their contracts.
What else for the year?
The ACCC will continue its work in combatting scams, detecting and prosecuting cartels and seeking to protect First Nation consumers.
The upcoming year will see a continuation of the ACCC’s work over the past several years – with a focus on broad economy-wide issues that impact a significant percentage of Australian consumers.
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