ACCC Compliance and Enforcement Priorities for 2024-2025: consumers first

Late last week, the Chair of the ACCC announced its compliance and enforcement priorities for 2024-2025.

Perhaps unsurprisingly, given the current public commentary about the impact of reduced competition on retail prices, consumer issues and cost of living pressures will be central.   

Key areas of focus

1. Sustainability: As Australia transitions to a greener economy, sustainability has become a key lens through which the ACCC assesses competition and consumer protection.

• In December 2023, the ACCC released final guidance for businesses making environmental claims. It also expects to release further guidance on representations about carbon offsets and third-party trust marks later this year.
• The ACCC is also developing its thinking on how to balance the public interest in a transition to a greener economy with traditional competition concerns and we can expect further guidance this year on assessing the public benefits of sustainability measures in the context of conduct authorisations.
• Product safety for green technologies is another key area of concern for the ACCC as this industry grows.

2. Supermarkets: The ACCC considers that cost of living pressures make consumers even more vulnerable to the potential effects of anti-competitive conduct in this sector.

• The ACCC has commenced a year-long broad-ranging inquiry into the supermarket and grocery sector.
• Potentially misleading marketing claims are also under scrutiny, including “was/now” pricing and other “specials” that may breach the Australian Consumer Law (ACL).

3. Essential services: The ACCC is building on its previous work on essential services, to focus on energy, telecommunications and banking this year.  

• The ACCC will continue to closely monitor ACL compliance in relation to pricing and product claims as well as price increases in the energy and telecommunications sectors.
• The ACCC will also be monitoring compliance with the new Gas Market Code introduced in September 2023, including via a new complaints portal.
• Advocacy for reforms to the regulation of retail deposits in the banking sector following its Retail Deposits Inquiry is also on the ACCC’s agenda.

4. Aviation: The ACCC continues to pay close attention to both competition and consumer issues in the aviation sector, particularly because of the high number of consumer complaints in this area, and the entry of a fourth local airline – Bonza. The Federal Government reinstated its direction to the ACCC to monitor the airline industry. So far, the ACCC has identified that rates of cancellation and delay remain higher than the historical average.

• The ACCC is also calling for slot reform and consumer compensation for delayed and cancelled flights.

5. Digital economy: As it did last year, the ACCC has recognised the significant shift from bricks and mortar to online commerce and is continuing to focus on misleading online conduct. Influencer marketing and online reviews are under the microscope following the results of an ACCC internet sweep last year.

• The ACCC will be scrutinising price comparison websites and their degree of transparency about sponsorship or incentives.
• Video games with in-app purchases are also an area of focus because of their popularity, including with young consumers. 

6. Unfair contract terms: After a grace period of one year, changes to the ACL that make unfair contract terms illegal have come into force.

• In 2024, the ACCC is turning its attention to enforcement. In particular, the ACCC has flagged unilateral variation rights and penalties for cancellation as issues of concern.

7. Consumer guarantees: Consumer guarantees remain a high priority for the ACCC in relation to enforcement and reform.

• Consumer electronics will be under particular scrutiny this year, including circumstances where consumers are caught between retailers and manufacturers who seek to avoid or pass on their ACL obligations. 
• The ACCC is also concerned about the volume of consumer complaints regarding delay and non-delivery of items purchased from retailers, and the extent to which representations (or misrepresentations) about timeliness of delivery affect consumer purchasing decisions and harm competition.
• The ACCC will continue to push for legislation to make non-compliance with the consumer guarantees a breach of the ACL.

8. ACL issues associated with the National Disability Insurance Scheme: The ACCC will be looking at ways to ensure users of NDIS provider services receive the benefit of ACL protections.

Enduring priorities

The ACCC has also restated its enduring priorities, which have been expanded to include the National Anti-Scam Centre and protections for small business. Its enduring priorities are:  

1. Cartel conduct;
2. Anti-competitive conduct;
3. National Anti Scam Centre;
4. Consumers experiencing vulnerability or disadvantage;
5. Conduct impacting First Nations Australians;
6. Small business; and
7. Product safety (especially for children).

Other reforms

In addition to consumer guarantee and retail deposit reforms, the ACCC will continue to advocate for reform of merger laws in line with its recent second submission to the Treasury Competition Review in January. The ACCC’s preferred option is for a mandatory formal clearance process that:

• requires all mergers over a certain threshold to be notified to the ACCC;
• includes a "call in" power for transactions under the threshold;
• prevents mergers under consideration from being completed until ACCC approval is granted; and
• requires the ACCC to be satisfied that a merger is not likely to substantially lessen competition, or that the public benefits outweigh competition concerns, before it grants approval for a merger.

What to do now

In light of recent changes to the law and the ACCC’s priorities for 2024-2025, we recommend you:

• review all standard form contracts with consumers or small businesses for compliance with the new unfair terms regime (if not already completed since November 2022);
• ensure any environmental claims you make are consistent with the ACCC’s eight key principles; and
• check refund, return and repair policies and ensure staff understand how to apply consumer guarantees.