ACCC 2024-25 compliance and enforcement priorities: supermarkets, aviation, essential services and the digital economy front and centre

Key takeaways

• Rising cost of living pressures have informed several ACCC enforcement priorities for 2024-25¹, including competition and consumer laws issues in the supermarket and aviation sectors, essential services and the digital economy.
• With the new penalty regime for the expanded unfair contract terms regime now in effect as of 9 November 2023, the ACCC will unsurprisingly focus its enforcement efforts on this area.
• The ACCC will continue to investigate consumer, product safety, fair trading and competition concerns in relation to environmental claims and sustainability, following recent enforcement action by both the ACCC and ASIC in this space.
• The ACCC will prioritise compliance with consumer guarantee obligations, particularly in relation to consumer electronics and misleading conduct by retailers in relation to delivery timeframes. The ACCC has also reiterated its support for reforms to impose new penalties on companies which fail to comply with their consumer guarantee obligations.
• The ACCC has added a new enforcement priority which seeks to improve the compliance of NDIS providers with their obligations under the Australian Consumer Law (ACL).
• Small business protection and scams have been added as new enduring ACCC priorities.

Snapshot of ACCC enforcement priorities for 2024-25

What are the ACCC’s compliance and enforcement priorities for 2024-25?

While businesses operating in Australia should ensure that they comply with all of their obligations under Australia’s competition and consumer laws, the ACCC’s annual enforcement priorities released on 7 March 2024 provide valuable insights into the ACCC’s key areas of focus for the year ahead. We comment on some of the ACCC’s key priorities below.

• Environmental claims and sustainability: Environmental claims and sustainability remain a key priority for the ACCC in 2024-25, with ACCC Chair Ms Gina Cass-Gottlieb stating that the ACCC ‘has a number of in-depth greenwashing investigations including in the energy and consumer products sectors’. This follows recent enforcement action by both the ACCC and ASIC in this area, for example:
  • in November 2023, the ACCC accepted a court enforceable undertaking from MOO Premium Foods Pty Ltd in relation to false and misleading representations regarding ‘ocean plastic’ claims made about its yoghurt product packaging; and
  • in July 2023, ASIC commenced proceedings against Vanguard Investments Australia alleging misleading conduct in relation to claims about certain environmental, social and governance exclusionary screens applied to investments in a Vanguard fund.
• Unfair contract terms: Following the introduction of substantial penalties and other important amendments to the unfair contract term (UCT) regime under the ACL on 9 November 2023,² the ACCC will unsurprisingly focus on investigating and taking enforcement action in this area. Ms Cass Gottlieb stated that the ACCC has ‘already undertaken a review of a range of standard form contracts and some matters are currently under investigation’. It is therefore important that businesses review and amend their standard form consumer and small business contracts for compliance with the UCT regime if they have not done so already.³
• Supermarket sector: The ACCC announced competition, fair trading, consumer protection and pricing issues in the supermarket sector as a key priority in 2024-25. The supermarket sector is already the subject of heightened regulatory scrutiny under existing government reviews and inquiries, including an ACCC price inquiry into competition in the supermarket and grocery sector, and a review of the Food and Grocery Code of Conduct led by Dr Craig Emerson. Ms Cass-Gottlieb also noted that the ACCC has been closely considering consumer reports alleging false or misleading ‘was/now’ and other pricing ‘specials’ advertised by supermarkets.⁴
• Competition and consumer protection issues in essential services: With cost-of-living pressures still a key economic issue, the ACCC will continue to focus on:
  • promoting competition in essential services, with a focus on telecommunications, electricity, gas and financial services; and
  • misleading pricing and claims in relation to essential services, with a particular focus on energy and telecommunications.
• Competition in the aviation sector: A new addition to the ACCC’s enforcement priorities for 2024-25 is competition and consumer protection issues in the aviation sector. This follows the recommencement of the ACCC’s monitoring of prices, costs and profits of major domestic airlines, which Ms Cass-Gottlieb stated will allow it to ‘look closer and follow through on allegations of anti-competitive behaviour and unfair business practices in the aviation sector’. The ACCC has also commenced proceedings against Qantas for alleged false or misleading representations and misleading or deceptive conduct in relation to the advertising of airline tickets that had already been cancelled but not removed from sale.
• Consumer and fair trading issues in the digital economy: The ACCC will continue to prioritise consumer and fair trading issues in the digital economy, with a focus on misleading or deceptive advertising in influencer marketing, online reviews, in-app purchases and price comparison websites. In December 2023, the ACCC reported on its findings of an internet sweep of social media influencers and online reviews. The ACCC’s review found that ‘over 80% of influencer posts raised concerns from consumers and more than a third of businesses assessed engaged in concerning conduct in relation to their online product reviews’.⁵
• Improving compliance with the consumer guarantees: The ACCC will prioritise improving industry compliance with the consumer guarantee regime, with a focus on consumer electronics and misleading conduct by retailers in connection with delivery timeframes. This follows recent ACCC enforcement action in this area, including:
  • the ACCC commencing proceedings against Mosaic Brands Limited (which owns brands such as Noni B, Rivers, Katies and Rockmans), for alleged false or misleading representations to consumers regarding product delivery timeframes; and
  • the Federal Court imposing an $11.5 million penalty on Mazda Australia for false or misleading representations to consumers about their consumer guarantee rights.

​In addition to existing penalties for parties which make false or misleading representations regarding a consumer’s rights under the ACL, Ms Cass-Gottlieb also reiterated the ACCC’s support for further reforms to introduce specific penalties for parties which fail to comply with their obligations under the consumer guarantee regime.

• ACL issues associated with the NDIS: Another new priority for the ACCC in 2024-25 is improving NDIS providers’ compliance with the ACL. Specifically, the ACCC is chairing a joint taskforce involving the NDIS Quality and Safeguards Commission and the National Disability Insurance Agency and also committed additional resources to identify and act on ACL matters that may arise from the conduct of NDIS providers.
• Consumer product safety issues for young children: The ACCC will continue to prioritise consumer product safety issues for young children in 2024-25, with a focus on the safety of nursery products including furniture, infant self-feeding and infant sleep products.⁶

Enduring ACCC priorities

In addition to announcing the 2024-25 priorities, Ms Cass-Gottlieb confirmed that the ACCC will continue to maintain the following existing enduring priorities:

• cartel conduct (noting the recent imposition of fines against Bindo Industries ($30 million) and Aussie Skips ($3.5 million), and criminal sanctions for the former CEOs of Bingo Industries and Aussie Skips, for cartel conduct in relation to the supply of skip bins and waste processing services);
• conduct impacting First Nations consumers;
• product safety;
• anti-competitive conduct (including the misuse market power); and
• consumers experiencing vulnerability or disadvantage.

The ACCC also added the following new enduring priorities this year:

• small business protection; and
• scams.

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This article was written by David Fleming, Partner, and Alexander Shepherd, Associate.

¹See ACCC enforcement priorities 2024-25: https://www.accc.gov.au/about-us/publications/compliance-and-enforcement-policy-and-priorities-2024-25
²See our previous article on the new penalty regime for unfair contract terms here: https://hwlebsworth.com.au/new-unfair-contract-terms-laws-and-increased-penalties-passed-by-senate/
³For more information about the UCT reforms, please refer to our UCT 101 and 102 series of articles here: https://hwlebsworth.com.au/uct-101-article-series/
⁴See our previous publication on ‘was/now’ pricing practices under the Australian Consumer Law here: https://hwlebsworth.com.au/businesses-must-be-careful-when-advertising-was-now-prices-or-pay-the-price/
⁵See our previous guide to social media marketing regulation for businesses and influencers here: https://hwlebsworth.com.au/a-guide-to-social-media-marketing-regulation-for-businesses-and-influencers/
⁶See our previous update on the ACCC’s updated product recall guidelines here: https://hwlebsworth.com.au/product-safety-update-new-recall-guidelines-released-and-first-penalties-issued-under-button-battery-safety-standards/