GROUNDHOG DAY ENDS FOR RETAIL: AUSTRALIAN CONSUMER LAW STILL APPLIES

***“I Got You Babe” by Sonny and Cher playing****

Much like Bill Murray stopping his alarm for the final time in Groundhog Day, Australia is about to emerge from strict COVID19 restrictions and gradually resume normal life. For the retail sector, this means consumers are able to return to shops in some states and territories.  However, early data from China’s experience indicates that in-store purchases are unlikely to bounce back to their pre-COVID19 levels straightaway.  A similar trend is predicted in Australia which is likely to lead businesses to adopt more aggressive advertising and marketing strategies to entice consumers back into stores.

Notwithstanding this, businesses should be mindful that their obligations under the Australian Consumer Law still apply – namely, not to make false statements about their goods or services, or otherwise engage in misleading or deceptive conduct. This applies to all representations made via media (print, radio, television, social media or online), on product packaging, and any statements made by business representative (i.e. employees).

Conduct that businesses should be particularly mindful of during the COVID19 recovery include:

  • discounts and pricing:
    • multiple pricing – pricing displays that show multiple prices for a product must be sold for the lower price or the product must be withdrawn from circulation until the pricing is corrected;
    • comparative pricing – ‘was / now’ or ‘strike-through’ price comparisons that represent savings during a sale period should only be used where the ‘was’ or ‘strike through’ price for that item was offered for a reasonable period before the sale commenced;
    • bait advertising – goods or services should only be offered at discounted prices when they are available in reasonable quantities for a reasonable period, unless it is clearly stated that the good is in short supply or on sale for a limited time; and
    • price matching guarantees – guarantees made by businesses to price match or beat competitor pricing must be met and consumers should be made aware of any conditions that apply to the guarantee i.e. products sold by Australian businesses;
  • philanthropic or charitable claims – any claims made by businesses that they will make a donation when their goods or services are purchased by consumers must be true, accurate and able to be substantiated; and
  • prize promotions – businesses that give away prizes to promote their goods or services should clearly disclose the details of the prize, how to enter the competition and how winners will be determined in advertising and related long form terms and conditions.  Further, where chance is involved in the determination of winners, state and territory trade promotion law applies and businesses may need to obtain relevant permits prior to conducting the competition.

This article was authored by Alexandra Moore (Solicitor), Valiant Warzecha (Solicitor), Jessie Buchan (Senior Associate) and Melinda Upton (Partner and Global Co-Chair, Intellectual Property and Technology).