Advertising and selling

Advertising and selling

(Parte 1 de 9)

Advertising and selling January 2007

SA January 2007

Advertising and selling

© Commonwealth of Australia 2011

This work is copyright. Apart from any use as permitted under the Copyright Act 1968 no part may be reproduced by any process without permission from the Australian Competition and Consumer Commission. Requests and inquiries concerning reproduction and rights should be addressed to the Director Publishing, Australian Competition and Consumer Commission, GPO Box 3131, Canberra, ACT 2601.

First edition October 1997 Second edition September 2001 Third edition November 2001 Fourth edition December 2004 Fifth edition January 2007 Sixth edition January 2011

Important notice

This publication has been updated to refer to the Competition and Consumer Act 2010 which replaces the Trade Practices Act 1974 on 1 January 2011. For more information on the Australian Consumer Law changes see w.consumerlaw.gov.au.

The information in this publication is for general guidance only. It does not constitute legal or other professional advice, and should not be relied on as a statement of the law in any jurisdiction. Because it is intended only as a general guide, it may contain generalisations. You should obtain professional advice if you have any specific concern.

The ACCC has made every reasonable effort to provide current and accurate information, but it does not make any guarantees regarding the accuracy, currency or completeness of that information.

ISBN 978 1 921887 21 5 ACCC_12/10_43423_157

What this guide covers 3

2 The quick guide 4 Advertising and selling defined 4

Businesses covered by the ACL 5

The media 5

What is misleading and deceptive conduct? 6 The key principles 8

The basic principles of misleading and deceptive conduct 10

Other techniques of advertising and selling 12

More examples of prohibited conduct 12

Third line forcing 14 Consequences of breaking the rules 15 Further information 16

Qualifications and exclusionary clauses 19

Silence or omission 20 Country of origin claims 21

The law 21

Comparative advertising 24 Two price advertising 26 Environmental claims 27 Cash back offers 29 Consumer guarantees 30

What are the guarantees? 31 What happens if the guarantees aren’t complied with? 31 Misleading consumers about their rights 32 Voluntary warranties or warranties against defects 32

Lay-by sales 3 Words and phrases—handle with care 34

‘Displayed price’ 38

Not stating the single price (section 48) 39 Bait advertising (section 35) 40 Misleading statements about employment and business opportunities (section 31) 42

Misrepresentations about interests in land (section 30) 43 Falsely offering prizes (section 32) 45

Inertia selling (sections 40, 41, 42) 47 Unsolicited credit and debit cards (section 39) 48 Referral selling (section 49) 50 Pyramid selling (sections 4, 45) 51 Multilevel marketing 52 Undue harassment and coercion (section 50) 53 Unconscionable conduct (sections 20, 21, 2) 54

6 Operating inside the law 57 Choosing the right medium for your message 57

Labelling 57 Television and radio 58 The internet 59 Unsolicited consumer agreements 60 Outdoor advertising 61 Brochures, pamphlets and flyers 62 Contracts 62 Agents 63

Contacting the ACCC 65 Index 67

INTRODUCTION1 Introduction

For the first time, from 1 January 2011, Australian businesses and consumers have the same legal protections and expectations in relation to advertising and selling practices wherever they are in Australia. These are contained in the Australian Consumer Law (ACL), which is a schedule to the Competition and Consumer Act 2010. The ACL applies nationally and contains simple rules to ensure that businesses trade fairly with consumers.

It is important for the entire community that businesses and consumers know their rights and responsibilities in the marketplace. Fair business practices ensure that there is genuine competition, leading to lower prices and better quality goods and services for consumers. Fair business practices also increase consumer trust and improve relationships between consumers and business.

These rules support the sound and ethical business practice of telling the truth. They protect consumers from potentially harsh business practices. They also provide a means of redress when consumers are treated unfairly.

All businesses are required to abide by the consumer protection rules contained in the ACL. These are enforced at the federal level by the Australian Competition and Consumer Commission (ACCC), with state and territory consumer protection agencies responsible for administering and enforcing the same rules in their own states.

Legal action for a breach of these rules can be taken by government agencies (usually the ACCC or the state and territory consumer protection agencies) or by businesses or consumers who feel they have been badly affected by the breach.

The issues covered in this guide are very general; consumers or businesses with a specific question are advised to contact the ACCC Infocentre on 1300 302 502, or the consumer protection agency in their state or territory.

Those seeking information about consumer protection issues relating to investments, superannuation, banking and insurance should contact the Australian Securities and Investments Commission (ASIC) on 1300 300 630 or via email to infoline@asic.gov.au or visit w.asic.gov.au.

Changes to the legislation since the last edition

These amendments changed the name (from 1 January 2011) of the national law governing advertising practices from the Trade Practices Act to the Competition and Consumer Act, harmonising the differences that previously existed under different state laws.

It should be noted that responsibility for consumer protection in financial products and services lies with ASIC. (This does not include consumer protection in health insurance, which is an ACCC responsibility.) Inquiries about any form of financial product or service should be directed to ASIC.

What this guide covers

Part 2 defines advertising and selling activities and summarises the basic rules. Part 3 looks at some areas where businesses must take special care in marketing. Part 4 discusses some of the specific rules that relate to particular selling practices.

Part 5 covers some practices, prohibited under the ACL, that take unfair advantage of consumers.

Part 6 provides advice to help businesses comply with the law.

Examples are used to illustrate the principles discussed in the guide. Many are based on court cases or investigations, and others on the ACCC’s experience and observations.

?Questions are posed throughout the text. These summarise the issues and considerations that should be taken into account when undertaking, or assessing, advertising and selling activities.

(Parte 1 de 9)

Comentários