Direct Selling Legal Update - June 2019
Our Legal Update contains papers published recently by Addisons concerning various issues and developments impacting upon the direct selling sector in Australia. Areas covered include new obligations in respect of regulatory and compliance matters, as well as new requirements of which marketing teams should be aware.
Unilever all in a sweat over new player's 'clinical' efficacy claims
The Federal Court recently examined whether representations alleged by Unilever to have been made by Beiersdorf about Beiersdorf’s Nivea ‘Stress Protect Clinical Strength’ deodorant were false, misleading or deceptive under the Australian Consumer Law . Whilst Unilever was ultimately unsuccessful, the case provides useful guidance on the use of the term ‘clinical’ as a product descriptor and what sort of scientific substantiation is required to support a ‘clinical’ claim.
Time to Whet your Whistle
Sailing through parliament, the impending whistleblower amendments are due to commence on 1 July 2019. But stormy seas abound for public and large proprietary companies, who will be required to amend their existing whistleblower policies to comply with the new legislation.
Laughing all the way - the ACCC releases its 2018 annual report
Heading into the Christmas period is always a festive time at the ACCC. Admittedly service-provider drinks are limited due to the ACCC’s gifts & gratuities policy, Christmas lunch is pay-your-own-way as the Government require it, but the one event ACCC staff always look forward to is the release of its annual report. Combined with its friends at the Australian Energy Markets Regulator, on 18 October 2018, the ACCC released the document detailing its activities over the past year.
Exclusivity Clauses in Distribution Agreements – The New Frontier in terms of Record Fines
Over August and September 2018, the Federal Court imposed penalties of $11.95 million against a variety of companies, with a director of one of the companies personally ordered to pay $350,000, as a result of illegal exclusivity clauses in the distribution agreements between the companies.
Penalties looming for unfair small business contracts
On 14 October 2018, the ACCC’s Deputy Chair, Mick Keogh, again reiterated the ACCC’s view that major changes are required to unfair contract laws for small businesses at the Franchise Council of Australia Law Symposium on Sunday, 14 October 2018. This speech follows similar comments from the ACCC Chair, Rod Sims, at his address to the Council of Small Business Organisations Australia in August of this year.
Bigger ACL Penalties for Christmas
Businesses beware. The penalty regime for consumer law in Australia has undergone a serious overhaul – just in time for the countdown to Christmas.
From 1 September 2018, the maximum pecuniary penalties the ACCC can seek for each contravention of the Australian Consumer Law (ACL) increased significantly.
Servcorp gets served by the ACCC
The ACCC is on a winning streak in the unfair contract terms arena.
Following on from its victory last year over JJ Richards, the ACCC has brought successful proceedings in the Federal Court against two entities in the Servcorp Group (Servcorp) under those same unfair contract term provisions in the Australian Consumer Law (ACL).
Slap on the wrist for Fitbit
On Friday 1 June, the Australian Competition and Consumer Commission (ACCC) accepted a court enforceable undertaking from Fitbit (Australia) Pty Limited in response to the ACCC’s allegation that Fitbit Australia’s product warranty misrepresented consumer rights for faulty goods under the consumer guarantee regime of the Australian Consumer Law (ACL).
Harper Reforms - what you need to know
On 6 November 2017, significant changes to Australia’s competition laws came into effect, introducing some of the key recommendations of the 2015 Harper Competition Policy Review.
Uber's crash course in the new unfair contracts regime
Uber is the latest target of the Australian Competition and Consumer Commission’s (ACCC) campaign to enforce compliance with the new unfair contract terms regime to protect small businesses.
In a sign of a shift in attitude of the ACCC since the beginning of 2017, the ACCC has moved from taking an educative approach to taking an enforcement approach.
First Apple, now Thermomix - are you next on the ACCC's hit list?
This year, the Australian Competition and Consumer Commission (ACCC) has made no secret of the fact it is pursuing big penalties against big players which act in breach of the Australian Consumer Law.
Advertising Claims Board gives Colgate-Palmolive a reason to smile
What’s better than winning a claim against one of your competitors for making misleading or deceptive claims in their advertising?
Simple – winning it in 3 months for a fraction of the cost of litigation.
Reckitt Benckiser’s Nurofen nightmare continues: $1.7 million penalty increased to $6 million
If you find yourself in the ACCC’s sights this year, what should you do?
ACCC Enforcement of B2SmallB Unfair Terms Law Commences – Drafting Tips to Avoid Breach of the Law
Long before President-Elect Trump comes to power and with far less fanfare, from 12 November 2016, the ACCC will move from an educative role to an enforcement role in relation to the new unfair contract terms laws applying to small business contracts.
Reckitt Benckiser’s Nurofen nightmare: A painful ending, or just the beginning?
In December 2015, Justice Edelman of the Federal Court of Australia found that Reckitt Benckiser (Australia) Pty Ltd (Reckitt Benckiser) had breached the Australian Consumer Law (ACL) by engaging in conduct that was misleading and deceptive and false (Nurofen decision).
Small business extension to the ACL’s unfair contract terms protections to take effect in November 2016
On 12 November 2015, the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Bill 2015 (Bill) was enacted, extending the reach of the current unfair consumer contract terms protections to small business.
Heads of Agreement: Some Handy Tips and Important Considerations
Heads of agreement are commonly used in a variety of corporate transactions as a precursor to formal binding documentation. The preliminary documents used for this purpose go by many names – letter of intent, term sheet, memorandum of understanding and so on. Regardless of the name that is used, all of these documents share some common legal issues and have potential pitfalls that need to be avoided
Credence claims remain on the ACCC's watch list - could you be the focus of their attention?
Credence claims in the food and beverage sector were the subject of keen interest by the ACCC throughout 2014 – and this interest is expected to continue unabated in 2015.
ACCC Chairman Rod Sims told a CEDA Conference early in 2014 that misleading credence claims ‘tilt the playing field away from suppliers who are innovating and doing the right thing’.
The Federal Court views breaches of the Australian Consumer Law (ACL) very seriously. As at September 2014, 14 cases brought by the ACCC under the ACL have seen penalties awarded in excess of $1 million each.
Competition Review draft report clears the way for streamlined merger clearances and other exemption processes
The draft report of the Competition Review Panel, released late last month, is a broad-ranging and ambitious blueprint for reform of Australian competition law and policy.
ACCC encourages increased reporting of cartel conduct with updated immunity and cooperation policy
The ACCC has published an updated immunity and cooperation policy which offers businesses and individuals a strong incentive to report their involvement in cartel conduct in order to avoid the consequences of investigation and prosecution.
Directors and Company Secretaries Face Greater Responsibility in Managing Risk
Directors and company secretaries are expected to take a more active role in establishing effective risk management practices in their companies under the Third Edition of the ASX Corporate Governance Principles and Recommendations.
The Complexity behind the Simplicity of the Amended ASX Listing Rules: Tips for Company Secretaries
As a whole, the latest amendments to the ASX Listing Rules, which took effect on 1 July 2014, have been made with simplicity in mind.
Direct Selling Legal Update - July 2014
Welcome to our July 2014 Direct Selling Legal Update. In our Update, we cover some of the developments that have taken place in the last few months.
Misleading credence claims in the food & beverage industry – ACCC v Coles and other recent ACCC activity
The Federal Court has found that Coles Supermarkets contravened the Australian Consumer Law in relation to claims made about some of its baked bread products.
Australian Consumer Law - ACCC releases guidance on country of origin claims
Businesses now have a useful overview of the issues to be aware of under the Australian Consumer Law (ACL) when making claims about the country or place of origin of a product, with the ACCC’s release of a new guideline in April 2014 Country of origin claims and the Australian Consumer Law.
Have your say! The Competition Policy Review Panel wants to hear from you
Do regulatory restrictions adversely impact competition in your industry? Should misuse of market power be analysed by its effect rather than its purpose? Is it effective to have three different merger clearance processes? What is your experience in dealing with the ACCC?
Direct Selling Legal Update - March 2014
2014 has got off to a busy start with many local changes of relevance to the direct selling sector.
In this update, we consider the following matters and developments.
Direct Selling Legal Update - Oct 2013
2013 has seen many interesting developments which impact upon the direct selling sector from a legal and regulatory perspective. In this edition, we highlight and comment upon some of these developments and their implications for the direct selling sector.
Direct Selling Legal Update - October 2012
Welcome to the latest edition of Addisons' Direct Selling Legal Update.
In this edition, we report on a number of interesting developments which affect those operating in the direct selling space.
Competition & Consumer Quarterly
In this edition:
* Food Industry Beware - ACCC drawn to misleading and deceptive conduct like a bee to honey
* Federal Court decision on search engine marketing: sponsored links may be misleading but advertisers have only themselves to blame
* Slimming spray sales representations stopped overseas
Knock, knock. Who's there? - ACCC imposes infringement notices and accepts undertaking from a door-to-door sales company in respect of misleading representations made during in-home presentations
* ACCC issues surprising statistics about the first six months of the new mandatory reporting requirements under the product safety provisions of the Australian Consumer Law
Competition Quarterly - August 2011
In this edition:
* A new era in Australian competition regulation: Rod Sims now at the helm of the ACCC.
* Are your advertising disclaimers really effective? Optus learns a $5.26 million lesson on the topic.
* A Pyrrhic victory or the ACCC testing the boundaries? A$2.7 million penalty but on paper only.
* The creeping tale of creeping acquisitions ...