Where a business strays beyond mere “sales puffery” in promoting its goods or services and “crosses the line” in to the realm of deception, depending on the nature of the statements sections 29(1)(a)-(n) of Schedule 2 to the Competition and Consumer Act 2010 (Cth)(ACL) may be able to be used as a sword to hold the errant business to account. Sections 29(1)(a)-(n) of the ACL contain a wide range of prohibitions relating to representations made about goods or services by businesses as shown below: [Read more…]
Competition law
False and misleading representations by business – sections 29(1)(a)-(n) of the ACL
Biologi’s Bf & Bk serums contain no Vitamin C – Court Orders prove it!
The recent decision of the Federal Court of Australia Native Extracts Pty Ltd v Plant Extracts Pty Ltd [2023] FCA 1265 where final declarations and orders were made against Mr Ross Macdougald (Macdougald), Plant Extracts Pty Ltd ACN 613 551 349 (Plant Extracts) and skincare brand Biologi Pty Ltd ACN 618 697 297 (Biologi) sheds light sheds light on the contents of certain of Biologi’s skincare products.
Despite the finality and legal clarity of the orders (Court Orders) there appears to be some confusion about what they mean. The Court Orders which are final, declared and ordered that various representations (discussed below) made by Macdougald, Plant Extracts and Biologi in relation to their products on their websites, on social media and on various third party websites were false and misleading and amounted to misleading and deceptive conduct. [Read more…]
Plant Extracts Pty Ltd & Ross Macdougald admit misleading conduct – ordered to publish corrective notices
On 23 October 2023, in the matter of Native Extracts Pty Ltd v Plant Extracts Pty Ltd [2023] FCA 1265 Justice Downes issued an initial judgement and made orders for declaratory relief and the publication of eight (8) corrective notices by Plant Extracts Pty Ltd ACN 613 551 349 (Plant Extracts) and skincare brand Bilogi Pty Ltd ACN 618 697 297 (Biologi). Dundas Lawyers proudly acted for Native Extracts and the other applicants in these proceedings. The Court also issued permanent injunctions against Mr Ross Macdougald and made various declarations that representations made by both Plant Extracts and Biologi in relation to their botanical plant extracts and skincare products published on their own websites and replicated on various third party websites amounted to misleading and deceptive conduct and were in fact, false and misleading. [Read more…]
Misleading and deceptive conduct – Invisalign v SmileDirectClub
The case of Invisalign Australia Pty Limited v SmileDirectClub LLC [2023] FCA 395 (Invisalign v SDC) involved two (2) companies that offer what’s referred to as the “clear aligner teeth straightening treatment” (Clear Aligner). On 23 December 2021, Invisalign Australia Pty Limited (Invisalign) commenced proceedings against SmileDirectClub Australia Pty Ltd and its US parent company (together, SDC) in the Federal Court of Australia. It was alleged that SDC had engaged in false, misleading or deceptive conduct in relation to representations made in promoting the Clear Aligner.
Greenwashing on Facebook – ASIC fines Future Super
What is Greenwashing?
In the context of financial services and the Australian Consumer Law (ACL), Greenwashing (Greenwashing) refers to a misrepresentation of the environmental impact, sustainability or ethical nature of a financial product or investment strategy or goods and services.
Future Super Investment Services Pty Ltd (Future Super) was the recipient of an infringement notice issued by the Australian Securities and Investments Commission (ASIC) on 21 April 2023. The infringement notice fined Future Super $13,320 for the company’s alleged Greenwashing claims made on Facebook. [Read more…]
Digital Platform Services Inquiry- submissions sought
The Australian Competition and Consumer Commission (ACCC) has released its seventh report of the Digital Platform Services Inquiry and has invited submission from interested stakeholders by 5 April 2023. The information sought by the ACCC revolves around the activities of digital platform service providers use of strategies like bundling to limit competition and create technological lock-in. Information is also sought about the extent of penetration into the smart home devices, cloud storage sectors by Digital Platforms. [Read more…]
What are the ACCC’s 2023/2024 enforcement priorities?
The Australian Competition and Consumer Commission’s (ACCC) enforcement priorities for 2023/2024 include environmental and sustainability claims, scam detection and disruption, consumer law issues in the digital economy, unfair contract terms, essential services, energy and telecommunications and wholesale gas markets.
ASIC commences legal proceedings alleged greenwasher
The Australian Securities and Investment Commission (ASIC) announced it has commenced legal proceedings in the Federal Court of Australia against Mercer Superannuation (Australia) Limited ACN 004 717 533 (Mercer) alleging ‘greenwashing’. ASIC alleges Mercer made misleading statements of the sustainable nature of some of their investment options. The proceedings commenced in the Victorian Registry of the Federal Court of Australia on 27 February 2023. [Read more…]
Consumer law changes – what business owners need to know
Recent changes to the Competition and Consumer Act 2010 (Cth)(CCA) made by the Treasury Laws Amendment (More Competition, Better Prices) Act 2022 (Cth) (Act) amends various pieces of legislation to provide stronger competition and consumer protections. In particular the Act bolsters the penalties that apply for offences relating to unfair practices and unfair contract terms under as contained within the Competition and Consumer Act 2010 (Cth) (CCA) and the Australian Consumer Law (ACL), contained within Schedule 2 of the CCA. [Read more…]
Greenwashing – Infringement notices to Black Mountain Energy Ltd
The Australian Securities and Investments Commission (ASIC) has issued “greenwashing infringement notices” to Black Mountain Energy Limited (BME) for various representations made to investors that the company’s “Project Vahalla” was “an industry-leading ESG Scorecard and net zero carbon emissions” in three separate publications. [Read more…]