More of the same: ACCC priorities for 2022

Articles Written by Sar Katdare (Partner), Michele Laidlaw (Partner), Morgan Blaschke-Broad (Senior Associate)

Yesterday, the ACCC announced its compliance and enforcement priorities for 2022.

What do you need to know?

There are no surprises.

The priorities are the same as those publicly voiced by the ACCC over the past 12-24 months but they again demonstrate the ACCC’s wide ambit in enforcing competition and consumer law.

Unlike previous years, the ACCC has not identified any new sector which it proposes to investigate or in respect of which it may undertake a market study. But don’t rejoice yet – this could happen at any time.

Consumer Law Priorities

  • Greenwashing, environmental and sustainability claims relating to both consumer-facing products but also manufacturing supply chains.
  • Manipulative or deceptive advertising and marketing practices in the digital economy including the use of ‘dark pattern’ techniques by online businesses to exploit or manipulate consumers, false scarcity advertising, social media influencing and ‘subscription traps’.
  • Issues arising from the COVID-19 pandemic including cancellations and refunds especially in the travel industry.
  • Compliance with consumer guarantees especially in respect of caravans and motor vehicles.
  • Product safety and compliance with button battery safety standards

Competition Law Priorities

  • Conduct in global and domestic supply chains resulting from the COVID-19 pandemic including port congestion, manufacturing disruptions and staff shortages.
  • Exclusive arrangements by firms with market power especially restrictions affecting bottleneck facilities and ‘most favoured nation clauses’.
  • Potential anti-competitive conduct in the financial services sector, with a new focus on payment services.

Sector Specific Priorities

  • Digital platforms
  • Essential services (energy and telecommunications)
  • Compliance with the Dairy Code and Franchising Code

As usual, the ACCC will also continue to take a vigorous approach to cartel conduct and merger review.

Law reform

In addition to outlining its priorities for 2022, the ACCC also reiterated its desire for a new “unfair practices” prohibition, penalties for breaching consumer guarantees and for significant changes to the merger review process and prohibition (see: https://jws.com.au/en/insights/articles/2021-articles/accc-wants-significant-merger-reform-what-does-thi ).

Change at the helm

Finally, it is important to note that Rod Sims’ third term as Chair of the ACCC will end in two weeks.

Mr Sims has been responsible for significant achievements in his time as Chair including overseeing the introduction of the criminalisation of cartels, the “effects test” for misuse of market power, the concerted practices prohibition and significant penalties for consumer law breaches.

We expect the new Chair, Gina Cass-Gottlieb will continue the ACCC’s vigorous enforcement of competition and consumer law matters.  Ms Cass-Gottlieb will bring a heightened level of rigour and sophistication to ACCC enforcement having acted for companies engaging with the ACCC for over 25 years as a leading private practitioner.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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