In 2024, we saw the ACCC holding businesses to account for the “usual suspects” of misleading and deceptive conduct. In particular, we saw investigations and proceedings concerning online reviews and ratings, price comparisons and consumer guarantees. False representations regarding availability, delivery timeframes and inadequate disclosure of surcharges were also the subject of regulatory action. However, last year also saw the ACCC’s focus pivot to major structural reform and conduct by big businesses, like supermarkets and airlines. This change in focus has meant that consumer protection cases have seemingly had a lower priority for the ACCC, with less activity in this space than we have seen in previous years.

Enforcement priorities

In announcing its 2024 enforcement priorities, the ACCC heralded a “faster, louder, stronger” approach to enforcement in general. Despite this, last year saw the ACCC prosecuting fewer consumer protection cases than in previous years. This trend applied even for the specific areas identified as consumer protection enforcement priorities for 2024, such as sustainability/greenwashing claims and social media influencer marketing. It appears that, instead of prosecuting matters, the ACCC is applying pressure through broad industry “sweeps” to change poor consumer law practices – or, otherwise, leaving it to competitors and other regulators (such as the Australian Securities and Investments Commission (ASIC) and Ad Standards) to pursue businesses whose conduct falls below that required of Australian business.

In particular, ASIC succeeded with a “hat trick” of wins in cases against greenwashers in the financial services sector (see here). Last year also saw the advertising industry self-regulatory body, Ad Standards, continuing to determine complaints made in relation to misleading influencer marketing (see here), despite no public investigations or actions by the ACCC in this space. Likewise, there were a number of high-profile cases brought by competitors in relation to a range of misleading and deceptive conduct cases, including in relation to perennially problematic advertising practices like comparative advertising and the use of disclaimers (see here).

Major developments and activities

Bloomex

Misleading ratings, hidden surcharges and false discounts

As reported by us last year (see here), online floral and gift retailer Bloomex Pty Ltd (Bloomex), was fined $1 million following an ACCC investigation that found it had contravened the ACL by advertising false discounts on its website through the use of false strikethrough and “was/now” prices, displaying misleading star ratings based on aggregate customer reviews which related to overseas and unrelated products and engaging in “drip pricing” whereby additional surcharges were not disclosed to consumers before checkout. Shortly after the ACCC commenced proceedings, Bloomex admitted to a multitude of poor advertising promotional practices. The Court imposed a penalty of $1 million, which was less than that sought by the ACCC ($1.5 million) but more than that argued by Bloomex ($350,000).

Mosaic Brands

Misleading delivery times, wrongful payments and consumer rights.

We also covered this matter last year (see here), reporting that, in March 2024, the ACCC initiated proceedings against Mosaic Brands Pty Ltd (Mosaic), alleging multiple contraventions of the ACL.

Mosaic, which is defending the proceedings (but entered voluntary administration in 2024) is the Australian fashion retailer behind brands including Millers, Noni B and Rivers. The ACCC is alleging that Mosaic:

• made false or misleading representations relating to the delivery of goods purchased online and/or wrongfully accepted payments for those goods; and
• provided customers with information that was inconsistent with their rights under the ACL.

This case is particularly interesting, as it will consider how an unexpected event – such as the COVID-19 pandemic – and the use of third-party delivery and logistics providers can impact assurances given by a business to its customers even where Mosaic posted disclaimers about delays on its website. The seriousness of the second aspect of the claim (regarding misleading consumer information) is potentially compounded by an undertaking given by Mosaic to the ACCC in March 2021 to resolve a previous ACCC investigation concerning Mosaic advertising certain products as “non-refundable”, which is contrary to the consumer guarantees under the ACL.

Secure Parking

False carpark reservation representations.

The ACCC brought proceedings against Secure Parking Pty Ltd (Secure Parking), alleging that between 2017 and 2022, via its website, EDMs, online and print ads, it falsely represented that consumers could “reserve” a parking spot at a particular time, date and place. The ACCC took issue with claims made by Secure Parking such as “Book online for a guaranteed spot” and “hassle-free parking”. However, Secure Parking did not generally reserve car spaces for consumers such that affected consumers found their chosen carparks to be full, or designated spots unavailable with obvious adverse flow on effects. The conduct applied to more than 10 million bookings made for Secure Parking’s facilities across Sydney, Brisbane, Perth, Adelaide, Melbourne and Hobart during the five-year period.

On 8 August 2024, the Federal Court ordered Secure Parking to pay almost $11 million in penalties for making false or misleading claims about its online booking services. Secure Parking was also ordered to pay part of the ACCC’s costs, publish corrective notices and review its complaints handling process.

Looking ahead

We expect to see the ACCC’s continued focus on major structural reforms (such as “unfair practices”, merger reviews and digital platforms and services) leaving consumer protection to be somewhat of a lower priority again in 2025. It’s likely that the ACCC will continue to bring consumer protection cases by exception and only where issues of national significance, substantive legal questions, blatant conduct or vulnerable consumers are involved. We also expect that, in line with its international counterparts, the ACCC will continue its new practice of conducting broad sweeps to identify problematic conduct and drive wholesale changes across multiple businesses without the need for lengthy and costly litigation. In other words, to push on with its focus on “faster, louder, stronger”. Finally, we think that cost of living consumer guarantees, delivery timeframes and price representations will remain firmly in the ACCC’s sights.