CN08 - ACCC announces its compliance and enforcement priorities for 2022 23

Misleading advertising and greenwashing, competition issues in supply chains, anti-competitive conduct in the financial services sector and exclusive dealing are all key issues the Australian Competition and Consumer Commission ("ACCC") will be tackling in the coming financial year. Outgoing ACCC Chair, Mr Rod Sims, set out the ACCC's enforcement and compliance priorities for 2022/23 offering a glimpse into the regulator's future advocacy for law reform.

Key takeaways

• Key industries at the centre of this year's ACCC enforcement priorities include the financial services sector, the digital economy, energy and telecommunications providers and businesses subject to industry codes of conduct (particularly in agriculture and franchising).
• The ACCC will also be taking a close look at exclusive arrangements by companies with market power, greenwashing claims, consumer guarantees (including for motor vehicles, in particular) and COVID-19 related consumer issues.
• Cartel activity, anti-competitive conduct, product safety and conduct particularly affecting Indigenous Australians and vulnerable consumers remain enduring priorities for the ACCC.
• The ACCC intends to continue advocating for merger reforms, changes to consumer guarantees, a prohibition on unfair practices and a general safety provision.

On 3 March 2022, Mr Rod Sims made one of his final appearances as the Chair of the ACCC in his address to the Committee for Economic Development of Australia.  Mr Sims outlined the ACCC's compliance and enforcement priorities for financial year 2022-23 and announced that the regulator will give immediate focus to these areas, putting businesses and stakeholders on notice of the ACCC's intentions. 

Competition enforcement and compliance priorities

This year's competition enforcement priorities for the ACCC are:

• Digital platforms markets:  As the ACCC continues to monitor the conduct of digital platforms in areas such as payments, search, apps and adtech, it remains concerned that new regulatory tools are necessary to address competition and consumer issues in this space.  In particular, the ACCC is drawing inspiration from overseas regulators for options for reform. 
• Global and domestic supply chains:  The COVID-19 pandemic has triggered major disruptions to the supply of retail goods resulting in higher freight costs that businesses are passing on to consumers.  To better share intelligence and detect illegal conduct across global supply chains, the ACCC has recently formed a "five eyes" working group with its overseas counterparts in the US, the UK, Canada and New Zealand.
• Anti-competitive conduct in the financial services sector:  In response to the accelerated shift from cash to payments services, the ACCC will be particularly focused on the issue of competition in payments services, including with respect to competition in digital wallet services and access to least-cost routing.  The ACCC has recently accepted a court enforceable undertaking from Visa in this space and will continue to investigate similar allegations of anti-competitive conduct.
• Exclusive arrangements by firms with market power that impact competition:  The ACCC noted examples of concerning exclusionary behaviour to include firms with market power restricting access to bottleneck goods or services (impacting the abilities of competitors or new entrants to compete) and "most favoured nation clauses" that prevent competitors from offering a better deal to consumers.

Consumer and fair trading enforcement and compliance priorities

The ACCC's consumer enforcement priorities for the coming financial year are:

• Environmental claims and sustainability:  The false promotion of green credentials, including carbon neutrality, in a bid to attract consumers (known as 'greenwashing') has been a long-standing concern of the regulator.  The ACCC will extend its purview beyond consumer goods to look into claims made in the manufacturing and energy sectors, and will work with the Australian Securities and Investments Commission and the Clean Energy Regulator to identify the appropriate enforcement agency to take this work forward.
• Manipulative or deceptive advertising and marketing in the digital economy:  The ACCC will be cracking down on business use of "dark patterns" – ie, website interface techniques that distort a user's online preferences.  These can range from low-stock warnings and false sale countdowns to pre-selected add-ons and targeted advertising.
• COVID-19 related consumer issues:  COVID-19 continues to create new challenges for the regulator, with the ACCC noting increased complaints relating to credit vouchers for cancelled flights and the supply of rapid antigen tests.
• Pricing and selling of essential services:  A lack of transparency in agreements with essential service providers, misleading representations in advertising and mis-selling of essential service products continue to concern the ACCC, particularly in the energy and telecommunications sectors.
• Industry compliance with consumer guarantees:  Non-compliance with consumer guarantees continues to be the most reported issue to the ACCC, particularly in relation to high value goods such as motor vehicles and caravans.
• Small business protection:  The ACCC will continue to ensure that small businesses are protected under the competition and consumer laws, including by enforcement actions where appropriate.  In particular, the ACCC is concerned by non-compliance with industry codes of conduct, including in the agriculture and franchising sectors.
• Product safety:  This remains a key priority for the ACCC, with a focus on battery safety standards and children's products.

Areas for reform 

In addition to its focus on the enforcement priorities above, the ACCC will also continue to advocate for law reform in the following areas:

• reforms which shift Australia's merger control from a voluntary to a mandatory regime;
• breaches to consumer guarantee obligations to be made illegal;
• a general prohibition on unfair practices;
• a prohibition on the supply of unsafe products to consumers; and
• increased flexibility for mandatory standards.

Concluding remarks

With new ACCC Chair, Ms Gina Cass-Gottlieb, commencing her term on 21 March 2022, these priorities offer insight into the ACCC's enforcement strategy in Ms Cass-Gottlieb's first year with the regulator.  As always, we expect the ACCC to proactively scrutinise business activity and take enforcement action when necessary, especially in those sectors targeted by this coming year's priorities.