While most of the ACCC’s product safety priorities for 2024/25 are unsurprising, its renewed emphasis on the mandatory reporting regime and a focus on identifying product safety issues quickly and effectively with improved data means that suppliers at all levels of the supply chain need to be extra vigilant to ensure their compliance with the Australian Consumer Law (ACL).

Speaking at the ACCC’s annual National Consumer Congress on 27 June 2024, ACCC Chair Ms Gina Cass-Gottlieb announced the ACCC’s product safety priorities for the new financial year. Sustainability, online product safety and (as always) the safety of young children will be under the ACCC’s microscope as the competition regulator seeks to use its powers to deliver real and immediate benefits for Australian consumers.

Sustainability – an ACCC-wide focus

Over the past two years, the ACCC has identified sustainability-related issues as a key enforcement priority as Australia transitions to a net-zero economy. The ACCC announced earlier this year that it will focus on the safety of sustainable products (particularly concerning renewable energy products and batteries), and Ms Cass-Gottlieb has now expanded on those plans, announcing that the ACCC will:

1. continue to raise awareness of lithium-ion battery safety risks and hazards;
2. work collaboratively with other government agencies to progress the harmonisation of the electrical safety regulatory framework for household electrical consumer products; and
3. develop guidance about product safety issues for people buying or selling second-hand goods online, including specific guidance for suppliers and consumers in online marketplaces.

Online marketplaces

The ACCC will be particularly focused on reducing the safety risks associated with businesses selling goods online. In particular, Ms Cass-Gottlieb announced that the ACCC will:

1. collaborate with domestic and international regulators to identify and address common risks and convey shared expectations for action to address product safety online; and
2. conduct targeted monitoring activities to inform discussions with online marketplaces and raise consumer awareness of risks associated with buying products online.

Ms Cass-Gottlieb specifically referred to ‘unsafe product listings’ on ‘online marketplaces’ and sales made directly to consumers from overseas sellers and foreshadowed that the ACCC will turn its focus to targeted engagement with online marketplaces and their owners to address these challenges.

A focus on enforcement of mandatory reports and better use of data

Unusually, Ms Cass-Gottlieb also flagged that 2024/25 will see a renewed focus by the ACCC on enforcing the mandatory reporting regime in the ACL. The ACL requires suppliers to report to the ACCC:

1. instances where a product has (or may have) caused a death, serious injury, or illness within two days of becoming aware of the incident; and
2. within two days of taking a ‘recall action’ to commence a voluntary recall.

Breaches of these provisions attract penalties of up to $16,650.

Ms Cass-Gottlieb noted that the ACCC’s approach will include both education regarding these requirements and their enforcement, so suppliers must ensure they strictly comply with these obligations or risk facing a penalty.

Finally, Ms Cass-Gottlieb conceded that the ACCC could do more to ‘get ahead of’ product safety problems before the worst possible scenario occurs, acknowledging that the ACCC feared that it lacked visibility over certain markets as rapid innovation increasingly outpaces the regulator. To that end, the ACCC will look to bolster its capabilities in identifying emerging product safety issues quickly and effectively with improved data. It will do this by working in partnership with Australian data experts, exploring new sources of data and improving its internal intelligence capabilities.

No advocacy for a general prohibition and concluding remarks

The ACCC’s 2024/25 product safety priorities underscore the ACCC’s remit to identify and address the risk of serious injury and death from safety hazards in consumer products. However, the effectiveness of the ACCC’s work in this area can only go so far without a ‘general safety’ provision in the ACL that prohibits the sale of unsafe goods.

Interestingly, when launching the ACCC’s product safety priorities for 2024/25, Ms Cass-Gottlieb subtly advocated for the Government to introduce such a provision but stopped short of stating that the ACCC is currently advocating for this outcome. Ms Cass-Gottlieb noted that, unlike most OECD countries, Australia does not have such a provision and:

‘[t]he introduction of new laws to prohibit the sale of unsafe goods could put a clear obligation on manufacturers to ensure their product is safe before it enters the market’.

Until the Government legislates to introduce such a provision, the ACCC will need to continue its more reactionary work, responding to reports of unsafe products identified after those products are already on the market.

What else for the year?

In addition, the ACCC will focus on:

1. young children – an enduring priority for the ACCC since 2019 – focussing on high-risk product safety issues in nursery products, including furniture, baby bottle self-feeding devices and infant reclining sleep products; and
2. emerging technology, including AI-driven innovations – the ACCC will explore the product safety risks associated with the use of emerging technology, including by collaborating with domestic and international regulators and reviewing the product safety legislative framework to assess how it applies to safety hazards from emerging technologies.