Nissan pays infringement notices for misleading representations in Dualis ‘Paintball’ advertisement

Nissan Motor Co (Australia) Pty Ltd has paid three infringement notices totalling $19,800 and provided a court enforceable undertaking to the Australian Competition and Consumer Commission for misleading advertising. 

The Nissan DUALIS ‘Paintball’ advertisement was published on Nissan’s YouTube channel, on FOXTEL’s Lifestyle Channel, in cinemas and in shopping centres for varying periods between 7 August 2011 and 10 April 2012.

The advertisement showed both a red ST manual hatch DUALIS and a silver Ti AWD DUALIS. The silver DUALIS was a superior grade vehicle that included optional extras such as metallic paint, panoramic sunroof and leather seats and trim. However, the driveaway price displayed in the advertisement only applied to the red DUALIS.

“Traders must ensure that consumers are not misled about the price of advertised goods. An advertisement which features a vehicle with optional extras, such as metallic paint or a sunroof, but only promotes the driveaway price for a base model is prone to mislead consumers,” ACCC Chairman Rod Sims said.

“We have received a number of complaints about this type of advertising, and we need to ensure advertising standards are maintained.

“Following an investigation into the advertising practices of the motor vehicle industry in 2010, the ACCC is continuing to monitor traders to ensure advertising standards within the industry remain high. Nissan has cooperated with the ACCC’s investigation and this outcome should send a warning to the motor vehicle industry as a whole,” Mr Sims said.

Nissan has acknowledged that the advertisement was likely to have contravened the Australian Consumer Law (ACL). The court enforceable undertaking requires Nissan to publish a corrective notice in The Australian and review its trade practices compliance program to ensure that this type of conduct does not occur again.

The payment of an infringement notice penalty is not an admission of a contravention of the ACL. The ACCC can issue an infringement notice where it has reasonable grounds to believe a person has contravened certain consumer protection laws. The court enforceable undertaking and list of infringement notices are available at http://www.accc.gov.au/content/index.phtml/itemId/3673

Section 18 of the Australian Consumer Law prohibits a person, in trade or commerce, from engaging in conduct that is misleading or deceptive or is likely to mislead or deceive.

Section 29 of the ACL supplements section 18 of the ACL by prohibiting specific forms of conduct. Relevantly, making a false or misleading representation with respect to the price of goods or services is an unfair practice in contravention of section 29(1)(i) of the ACL. The ACCC may issue an infringement notice where it has reasonable grounds to believe that a person has contravened section 29 of the ACL.

In 2010, the ACCC undertook an industry-wide investigation into the price advertising practices of motor vehicle manufacturers to ensure compliance with what was then the Trade Practices Act 1974 (now the Competition and Consumer Act 2010) and with the ACCC’s Pricing Manual for the Motor Vehicle Industry publication.

As a result of that investigation, various motor vehicle manufacturers provided the ACCC with assurances that advertising standards would remain high. The ACCC continues to monitor players in the motor vehicle industry as part of its wider role in monitoring and enforcing compliance with the Australian Consumer Law.