The ACCC’s Top Ten
If you think that the key to good marketing is to use
words such as ‘free’, ‘lifetime’, ‘unlimited’ and ‘fresh’,
take this as a warning to use these weasel words carefully
because they are high on the radar of the consumer
regulator, the Australian Competition & Consumer Commission
In this article we list the top ten words that the ACCC and
the Federal Court has penalised and sanctioned businesses
for using in their advertising, marketing materials,
packaging and on websites, because they are misleading.
The top ten weasel words are:
#1 Estate Fee
Funeral directors love euphemisms. They talk about the
‘dearly departed’ or ‘cherished person’, not ‘dead person’
or ‘corpse’. So it comes as no surprise that Alex Gow
Funerals used ‘Estate Fee’ in its terms and conditions
instead of ‘Late Payment Fee’.
The ACCC considered this to be an unfair contract term
because it was unclear, particularly as the ‘Estate Fee’ (of
$400) was included in every invoice. The ACCC penalised Alex
Gow funerals $13,320.
Alex Gow refunded ‘Estate Fees’ paid in error and now calls
it ‘Late Payment Fee’.
‘Free’ is one of the most powerful words used in
Phoenix Institute, a training college, offered students
‘free’ courses and ‘free’ laptops for enrolling.
The Federal Court found the use of ‘free’ to be false and
misleading because by taking up the offer and enrolling in a
course, students became liable to repay a HECS debt without
actually taking the course. The Federal Court will impose
penalties and corrective orders at a later date. They are
likely to be large, taking into account that the fees funded
by HECS and paid Phoenix for the enrolments were $109
Bet365 offered “$200 FREE BETS FOR NEW CUSTOMERS” when in
fact new customers were required to deposit and then gamble
$200 of their own money first, before they could receive
their $200 free bet. Also, they had to gamble their deposit
and bonus three times before they could withdraw any
The Federal Court ordered Bet365 pay a penalty of $2.75
#3 Pure ★ Natural ★ Organic
GAIA Skin Naturals advertised Natural Baby Bath & Body Wash,
Baby Shampoo and Baby Moisturiser as ‘Pure ★ Natural ★
Organic’ when in fact they contained two synthetic chemical
preservatives: sodium hydroxyl methyl glycinate and phenoxyethanol.
The ACCC considered the advertising to be false and
misleading and penalised GAIA $37,800.
If a retailer advertises price reductions for all products,
it will advertise ‘X% off storewide’. digiDirect advertised
‘15% OFF STOREWIDE’ in its sales promotions.
The ACCC considered the word ‘storewide’ to be misleading
because a number of popular digital cameras, camera lenses
and accessories were excluded from the promotions.
Although the promotions contained the disclaimer “terms and
conditions apply”, the ACCC considered that this disclaimer
was not effective to avoid it being misleading. The ACCC
penalised digiDirect $39,240.
#5 Made in / Grown in
If a product is labelled ‘Made in Australia’ or ‘Product of
Australia’, then by law it must be ‘substantially
transformed’ in Australia by either being ‘grown’ or
‘produced’ in Australia. Or, as a result of one or more
processes undertaken in Australia, the goods are
‘fundamentally different in identity, nature or essential
character from all of their imported ingredients or
Kimberly-Clark labelled flushable wipes ‘Made in Australia’
when they were imported from and made in Germany, South
Korea and the UK. The ACCC prosecuted, and the Federal Court
imposed a fine of $200,000 for false representations.
Ozwear marketed its ‘Classic Ugg’ footwear range as made
using the ‘best materials available in Australia’ when in
fact they were made in China. The ACCC penalised Ozwear
On its website, Grape Co said that ‘Every single one of our
grapes is personally hand-selected from the finest fruit on
our family’s estate in Sunraysia Australia’, when in fact
some of its grapes were grown on third party growers’
properties, not on the family farm. The ACCC said this was
misleading and penalised Grape Co $34,920.
Four furniture retailers used statements such as ‘was $2599,
now $2049’, or ‘$799, save $200’ in their advertising, when
in fact the item had never been advertised at the ‘was’
price, or was only advertised at the ‘was’ price for a short
period of time.
ACCC considered these claims of false savings misled
consumers. The ACCC said that any claimed savings must be
accurate and be based on a ‘before’ price which has been
offered for a reasonable period when using comparison
advertising. The ACCC penalised these retailers $12,600
Outdoor Supacentre advertised ‘was/now’ price comparisons
for products such as camp ovens despite not advertising or
selling the products at the ‘was’ price for the previous
three months. The ACCC penalised Outdoor Supacentre $63,000,
and accepted an undertaking to cease and to publish
Two mobile phone plan providers advertised ‘Unlimited Mobile
Data offer’ when in fact the unlimited data allowance
applied only for the first three renewals, and then reverted
to a capped amount, with charges imposed if the data use by
customers exceeded the capped amount.
The ACCC considered the advertising misled consumers because
there was no clear and prominent disclosure of the
limitations on data usage before additional fees were
payable. The ACCC penalised Amaysim Australia $126,000 and
Three of the largest GPS manufacturers in Australia used
these statements in their advertising and marketing:
‘Lifetime TomTom Traffic’, ‘Lifetime FREE Maps’ and ‘Free
Lifetime Maps & Traffic’, when in fact each retained the
discretion to stop providing these services before the end
of the lifetime of the device in certain circumstances.
The ACCC considered these limitations to be misleading
because they were not communicated to consumers in a
prominent way. At the ACCC’s request, the manufacturers
agreed to amend the statements on all future advertising and
Belkin printed “lifetime warranty” or “limited lifetime
warranty” on the packaging of its products (wireless
routers, switches, cables), when it only repaired or
replaced products within the five years from the date of
purchase. Belkin had a disclaimer, but it was not printed on
product packaging, only on its website. The disclaimer was
not effective. Belkin undertook to the ACCC to honour claims
made under its lifetime warranty policies for the lifetime
of the original purchase.
Coles advertised bread as ‘Baked Today’ and ‘Freshly Baked
In-Store’ when in fact it heated up in-store partially baked
and frozen dough imported from a supplier in Ireland.
The Federal Court found these descriptions were misleading
and ordered Coles to pay a penalty of $2.5 million.
It’s not so much the word ‘healthy’ but words which suggest
nutrition and disease protection. As you will see, the
penalties for breaches under this heading are substantial.
GJ Heinz advertised that its Little Kids Shredz products
were ‘nutritious food’ for children aged 1-3 years’, when in
fact they contained approximately two-thirds sugar which can
cause health issues such as obesity and tooth decay.
The Federal Court found the nutrition claim to be false and
misleading and ordered GJ Heinz to pay a penalty of $2.25
Lorna Jane advertised that its activewear garments protected
against viruses (including COVID-19) because they were
treated with an ‘anti-virus’ spray, when in fact it did not
have any scientific results to support that claim. The
Federal Court ordered Lorna Jane to pay a penalty of $5
The ACCC Advertising and Selling Guide (July 2021)
The Guide is ACCC’s comprehensive guide for businesses to
refer to when advertising and promoting their goods and
The Guide provides examples of conduct that is likely to
breach the Australian Consumer Law and practical tips for
advertising and selling. It addresses marketing techniques
and channels including:
- ‘was/now’ or ‘strike through’ pricing
- reviews and testimonials
- online group buying
It also provides guidance for businesses seeking to make
claims on issues such as:
- nvironmental and organic merits
- country and place of origin
Marketing commentary by Michael Field from EvettField
Don’t Trust the Marketing to the Marketers
My question is: Should the entire marketing function be left
to the marketers, without input and oversight from other key
business functions particularly legal compliance?
A cursory review of the ACCC media releases from the last
five years reveals a catalogue of prosecutions where
businesses have failed to obtain legal compliance input in
their marketing and have felt the full force of the law as a
When a business engages in any form of marketing, they are
making a promise to the customer. In most businesses,
marketing messages are developed by the marketing team,
often with little or no oversight from other business
Marketing objectives are often defined as goals such as
improve brand awareness, increase foot traffic or website
visitors, or generate sales.
It may be time to include a new marketing goal for every
campaign: “Compliance with all of the relevant laws to avoid
prosecution and to protect our brand integrity and
To achieve this goal, the team leading the marketing
function must have significant experience in navigating the
complex regulatory frameworks that the Australian
Competition & Consumer Commission (ACCC) has in place. If it
doesn’t it must call upon that expertise.
In this business landscape, the business needs to develop a
formal framework and approval process where any promises
made by the marketing team are vetted for regulatory
I ask again: Should a business entrust the marketing to the
My answer is: Only if there are adequate processes in place
to ensure compliance with the relevant laws.