Mackay Chapman January 2025 ACCC Update

In this month’s ACCC update:

• ACCC releases final guide on sustainability collaborations;
• Misleading practices in Black Friday sales advertising flagged by ACCC;
• ACCC takes action against NDIS provider Ausnew Home Care for misleading claims;
• Proposal to extend authorisation for major supermarkets' soft plastics recycling collaboration;
• Mobil faces legal action over alleged misleading fuel claims in Queensland; and
• ACCC grants authorisation for collaboration under the ‘Pilbara regime’.

ACCC releases final guide on sustainability collaborations

The ACCC has unveiled its final guide on sustainability collaborations, which helps businesses understand when they can collaborate without violating competition laws. 

As Australia shifts towards a more sustainable economy, businesses may need to join forces to tackle environmental and social issues. The guide outlines situations where collaborations are low-risk and explains the exemptions available, including quicker processes for small businesses.

ACCC Deputy Chair Catriona Lowe highlighted that while many sustainability initiatives won’t raise competition concerns, businesses can apply for authorisation if needed. The ACCC has already approved numerous sustainability collaborations, such as joint renewable energy buying and supply chain improvements.

Commissioner Liza Carver added that the guide clarifies the existing law, focusing on ensuring the public benefits outweigh any competition risks. It also offers practical examples of low-risk collaborations, such as joint R&D and information sharing.

The guide includes a quick checklist to help businesses assess risks and navigate the authorisation process. The ACCC encourages early discussions with businesses considering exemptions.

Misleading practices in Black Friday sales advertising flagged by ACCC

The ACCC has raised concerns about misleading discount claims made by businesses during the Black Friday sales period following an extensive sweep of online and in-store advertisements. 

The commission found a range of practices that could mislead consumers, including false claims about “sitewide” sales and dubious "was/now" pricing tactics.

“We uncovered several instances of misleading practices, from site-wide discounts that were not truly applicable across all products to inflated discount claims,” said ACCC Deputy Chair Catriona Lowe. ‍

                        “We’ve already asked some retailers to justify their claims and are considering further investigations.”

Consumers reported concerns that prices had been artificially raised before the sales to make discounts appear larger than they were. The ACCC collects data on the pricing of retail goods before, during, and after sales to determine whether this practice is widespread.

                        “Many retailers are doing the right thing, but businesses must not exploit consumers during sales periods, especially with rising cost-of-living pressures,”
                        Lowe added.

The ACCC reminds businesses that all sales claims must comply with Australian Consumer Law, which prohibits misleading or deceptive conduct. Retailers are urged to ensure that their promotional claims are clear and accurate, with any exclusions or disclaimers prominently displayed.

ACCC takes action against NDIS provider Ausnew Home Care for misleading claims

The ACCC has initiated Federal Court proceedings against Ausnew Home Care Service Pty Ltd, a registered NDIS provider, for allegedly making false or misleading representations about aged care and disability products. 

The ACCC claims that Ausnew misled consumers regarding product pricing, sales urgency, NDIS approval, and consumer guarantees.

The regulator alleges that between November 2022 and December 2023, Ausnew used "strikethrough" pricing, "last chance" sales banners, and countdown clocks to suggest significant savings during frequent sales – when, in fact, these claims were deceptive. 

The ACCC also alleges that Ausnew falsely advertised products as “NDIS approved” despite the NDIS not endorsing specific products.

Additionally, the ACCC claims that Ausnew’s refund policy, published on its website, misrepresented consumer rights under Australian Consumer Law, imposing unwarranted conditions on refunds, exchanges, and faulty product claims.

“Many consumers affected by these misleading practices were elderly or living with disabilities,” said ACCC Commissioner Liza Carver. 

                        “Businesses cannot mislead consumers about their rights or create artificial urgency during sales periods.”

The ACCC is seeking penalties, injunctions, and other orders for the alleged breaches.

Proposal to extend authorisation for major supermarkets' soft plastics recycling collaboration

The ACCC is proposing to grant Coles, Woolworths, and ALDI authorisation with conditions to continue their joint efforts in managing stockpiled soft plastics and running an in-store collection pilot until 31 July 2026. 

This follows the collapse of the REDcycle program and the supermarkets' assumption of responsibility for the soft plastics stockpiles in 2023.

The proposed authorisation aims to allow supermarkets to continue addressing the soft plastics stockpile issue. Due to processing capacity constraints, progress has been limited. However, the outlook is improving, as more processors are expected to come online in 2025.

The pilot in-store collection program, operating in Victoria and New South Wales, will expand to other areas. The ACCC requires the supermarkets to provide quarterly progress reports and minutes from the Soft Plastics Taskforce meetings. A new condition will prevent supermarkets from restricting recycling or logistics providers from servicing other customers.

The ACCC seeks public submissions on the draft determination by 24 January 2025, and submissions can be made via the ACCC website.

Mobil faces legal action over alleged misleading fuel claims in Queensland

The ACCC has initiated legal proceedings against Mobil Oil Australia Pty Ltd, accusing the company of making false or misleading representations about the fuel sold at six of its petrol stations across north and central Queensland.

Between August 2020 and July 2024, Mobil allegedly claimed through signage and posters at the six sites that the fuel sold was "Mobil Synergy" fuel. This fuel contained specific additives designed to offer benefits like improved engine performance, reduced emissions, and protection against corrosion. However, the ACCC asserts that Mobil did not actually supply Synergy fuel at these stations.

The affected stations were located in Rasmussen, Yeppoon, Barcaldine, Rural View, Proserpine, and Aitkenvale. The ACCC alleges that these misleading claims may have influenced consumers' purchasing decisions, potentially diverting business from competitors.

ACCC Commissioner Liza Carver stated, 

                            “Consumers rely on the accuracy of claims made by fuel suppliers, and in this case, Mobil's conduct may have prevented consumers from making                             informed decisions.”

The ACCC will seek penalties, declarations, costs, and other orders in the Federal Court.

ACCC grants authorisation for collaboration under the ‘Pilbara regime’

The ACCC has granted authorisation with conditions to Pilbara ISOCo Ltd and its participants to collaborate on measures aimed at enhancing the safety, security, and reliability of the North West Interconnected System (NWIS). 

This authorisation allows for the exchange of information, planning, and coordination of system security, outage management, and technical standards.

The ACCC believes that this collaboration is likely to deliver public benefits, including reduced disruption risks, lower costs for electricity consumers, and improved access to third parties. 

The collaboration could also encourage investment in decarbonisation projects in the Pilbara, yielding significant environmental benefits.

The authorisation comes with six conditions to ensure the collaboration's scope is limited and includes adequate governance controls. While the ACCC approved the proposal for a term until 31 January 2028 (shorter than the five-year period originally requested), the authority is confident the arrangement will result in net public benefits.

For more details, the final determination is available on the ACCC’s public register.

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The contents of this article do not constitute legal advice and it is not intended to be a substitute for legal advice and should not be relied upon as such.  It is designed and intended as general information in summary form, current at the time of publication, for general informational purposes only.  You should seek legal advice or other professional advice in relation to any particular legal matters you or your organisation may have.