On Thursday, 3 March, in one of his final addresses as Chair of the Australian Competition and Consumer Commission (ACCC) before Ms Gina Cass-Gottlieb commences on 21 March 2022, Mr Rod Sims announced the ACCC’s 2022-23 Compliance and Enforcement Priorities in his annual address to the Committee for Economic Development Australia (CEDA).

Ms Cass-Gottlieb closed the session, emphasising that her objectives as incoming ACCC Chair are aligned with Mr Sims’ and thanking Mr Sims for his outstanding contribution to the ACCC over the last decade. 

From this year, the ACCC’s compliance and enforcement priorities will be aligned with the financial rather than calendar year. 

The 2022-23 ACCC priorities reiterate many of the ACCC’s enduring priorities from previous years with some new and sharpened focal points. 

The ACCC’s new Compliance and Enforcement Priorities in the coming financial year are:

• Consumer and fair trading issues in relation to environmental claims and sustainability.
• Consumer and fair trading issues relating to manipulative or deceptive advertising and marketing practices in the digital economy.
• Competition issues in global and domestic supply chains, particularly where they are disrupted by the COVID-19 pandemic.
• Exclusive arrangements by firms with market power that impact competition.
• Promoting competition and investigating allegations of anti-competitive conduct in the financial services sector, with a sharpened focus in 2022-23 on payment services.
• Compliance with the button battery safety standards.
• Consumer product safety issues for young children, with a focus on compliance, enforcement, and education initiatives.

Holding course: ACCC’s enduring priorities

Mr Sims affirmed the continuation of prior years’ priorities, including the ACCC’s 2021 priorities, including:

Enduring consumer law priorities

• Consumer and fair trading issues arising from the COVID-19 pandemic.  In addition to issues in the travel and event sector, Mr Sims noted new issues are emerging such as credit vouchers for cancelled flights which are unable to be redeemed and challenges in the supply of rapid antigen tests.
• Competition and consumer issues arising from the pricing and selling of essential services, with a focus on energy and telecommunications.
• Empowering consumers and improving industry compliance with consumer guarantees, with a focus on high value goods including motor vehicles and caravans. 
• Ensuring small businesses receive the protections of the competition and consumer laws and industry codes of conduct, including in agriculture and franchising.

Enduring competition enforcement priorities

• Cartel conduct enforcement.  Mr Sims noted that the ACCC has six cartel matters currently before the courts and a number of other cartel investigations on foot.
• Competition issues in the commercial construction sector. 
• Competition issues relating to digital platforms.
• Promoting competition and investigating allegations of anti-competitive conduct in the financial services sector, with a sharpened focus in 2022-23 on payment services.

Consumer law priorities:  greenwashing and dark patterns

Greenwashing

Mr Sims identified ‘greenwashing’ (falsely promoting environmental or green credentials) as a concern for both consumers and businesses, reducing confidence in the market and leading to unfair competition from businesses making misleading claims.

The ACCC will be looking at issues relating to environmental claims and sustainability in the supply of consumer goods and also in the manufacturing and energy sectors, including working with other regulators in particular ASIC and the Clean Energy Regulator.

Dark patterns

The ACCC is concerned with the use of manipulative or ‘dark pattern’ techniques used by online businesses to exploit or pressure consumers (read more about dark patterns here).

While the ACCC intends to continue to take enforcement action in the coming financial year, Mr Sims reiterated that some of these practices in the digital economy are unlikely to be addressed by existing provisions, necessitating the introduction of a prohibition on unfair practices to apply economy wide.

Supply chains, agency coordination and exclusive arrangements

Supply chains impacted by COVID-19

The ACCC is concerned about COVID-related staff shortages, port congestion and transport interruptions which have disrupted the supply of retail goods and resulted in heightened freight rates and higher prices for consumers.  Mr Sims said that the ACCC will not hesitate to act where businesses are taking advantage of the situation to fix prices or share markets. 

Mr Sims noted that these issues are not unique to Australia, citing the new ‘five eyes’ working group formed with the ACCC and competition authorities in the US, the UK, Canada and New Zealand.

Exclusive arrangements

Mr Sims flagged that the ACCC is seeing examples in Australia of large and powerful firms engaging in exclusionary behaviour that materially impacts competition.  The ACCC is particularly concerned about firms with market power restricting access to bottleneck goods or services, impacting the ability of competitors or new entrants to compete.

He indicated that the ACCC will be looking closely at exclusive arrangements, and will pursue enforcement action where appropriate (e.g., the ACCC’s Peters ice cream case currently on foot, where the ACCC has alleged Peters engaged in anti-competitive exclusive dealing in restricting its distributor from supplying competing ice cream products to petrol and convenience retailers).

Product safety and infrastructure

In addition to its consumer and competition priorities, the ACCC will continue its product safety and infrastructure work, including:

• Ensuring compliance with the button battery safety standards which will commence in June this year.
• Developing resources to assist businesses to provide better guidance for suppliers about recall responsibilities.
• Continuing its work to develop a future NBN regulatory framework.
• Improving the information available to customers in rural and remote areas relating to mobile and broadband telecommunications services.
• Monitoring domestic airline activity to identify any behaviour that may be damaging competition.
• Examining whether the benefits from the introduction of a government reinsurance pool are realised by those it was designed to help.

No rest for digital platforms

A theme of the 2022-23 priorities, and much of the ACCC’s attention in recent years, is addressing what, according to Mr Sims, are the ACCC’s “systemic competition and consumer concerns” in digital platform markets and its increasing concern about the ability of existing laws to address them using after the fact enforcement tools, calling for regulatory solutions.

In addition to manipulative online advertising techniques, Mr Sims referred to competition concerns relating to Apple’s practice of restricting third party access to its near field communication technology and the terms it imposes for the use of Apple Pay.

The ACCC will provide a report in September this year examining the various options for ex ante laws to address consumer protection as well as competition concerns.

‘There is risk that the ACCC, like our overseas counterparts, is effectively engaging in a ‘whack a mole’ strategy, attempting to remedy one manifestation of anti-competitive conduct while even more problematic conduct surfaces elsewhere.’

Advocacy and reform

In addition to reforms to address competition concerns relating to digital platforms, Mr Sims noted several other reform and advocacy areas for the ACCC including:

• Merger reform:  Mr Sims reiterated concerns about the current informal merger clearance system and the mergers test.  While continuing the discussion on these issues will remain an ACCC priority, Mr Sims noted that it is ultimately a matter for government to determine what the next steps are.
• Consumer guarantees:  the ACCC will advocate for reforms to make non-compliance with consumer guarantee obligations illegal and to make it illegal for a manufacturer to not indemnify a supplier that does give a consumer a remedy.
• Prohibition on unfair practices:  Mr Sims said that the ACCC believes that introducing a prohibition on unfair practices, to apply economy wide, is necessary.
• General safety provision:  the ACCC will continue to advocate for the introduction of a general safety provision that prohibits the supply of unsafe products to consumers.
• Australian Consumer Law mandatory standards: The ACCC will continue to support the Government’s initiative to make mandatory standards under the ACL more flexible.

Where to next?

The incoming ACCC Chair, Ms Cass-Gottlieb, closed the CEDA session, emphasising that her objectives are aligned with Mr Sims’ and that she will maintain the same clear purpose focussing on the safety interests and welfare of consumers and the maintenance of effective competition across the economy.  Ms Cass-Gottlieb also thanked Mr Sims for his outstanding contribution to the ACCC over the last decade.

Ms Cass-Gottlieb commences as ACCC Chair on 21 March 2022.