ss. 52, 53(e), 53(g). Alleged misleading conduct; make a misleading representation with respect to the price of goods and concerning the existence, or effect of any condition
On 11 April 2006 GM Holden Ltd gave an undertaking to the ACCC to:
provide written notice to each person who purchased a vehicle subject to the special discount offering them the opportunity to return the vehicle for a full refund
endeavour to comply with any industry standards developed by the ACCC that are generally adopted by the industry
improve its trade practices compliance program
engage an independent third party to review its trade practices compliance program.
In October 2005 GM Holden Ltd launched the ‘Holden Employee Pricing’ promotion, with advertisements stating ‘Holden employee pricing for all Australians. For the first time ever, all Australians can enjoy the financial benefit of Holden Employee Pricing.’
The ACCC formed the view the advertisements were misleading because GM Holden Ltd did not provide members of the public with the discount on factory fitted options and accessories, the discounted dealer delivery fee or the special discount on selected vehicles which were available to Holden employees at the time. The ACCC also formed the view the misleading impression given by the headline statement could not be cured by the further information given in the advertisements, particularly in the disclaimer.
Just Squeezed Fruit Juices Pty Limited & Just Squeezed Fruit Juices (NSW) Pty Limited
ss. 52, 53(a), 55. Alleged misleading or deceptive conduct; falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use and engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods
On 27 March 2006 Just Squeezed Fruit Juices Pty Limited & Just Squeezed Fruit Juices (NSW) Pty Limited gave an undertaking to the ACCC to:
cease manufacturing fruit juice products under the brand name ‘just Squeezed FRUIT JUICES’ by 31 March 2006
supply all fruit juice products manufactured on or after 1 April 2006 under the new brand name ‘just Delicious FRUIT JUICES’
not engage in similar conduct in future for a period of three years
publish a corrective notice
implement a trade practices compliance program.
The Just Squeezed Group comprises Just Squeezed Juices Proprietary Limited and Just Squeezed Fruit Juices (NSW) Pty Limited which manufactures and supplies a range of fruit juice products to all states and territories except Western Australia and Tasmania.
The ACCC has come to the view that the Just Squeezed Group misrepresented the contents of their fruit juice products on the product labels. In particular, the prominent placement of the words ‘just Squeezed’ on the labels, together with the images of fruit and words such as ‘Orange juice’ and ‘Apple juice’, created the overall impression to consumers that each product was produced directly from the fruit shown on the labels and did not contain reconstituted juice.
On 13 April 2006 an 87B undertaking was offered by Patrick Corporation Limited (Patrick) in connection with its proposed acquisition of FCL Interstate Transport Services (FCL) to alleviate competition concerns identified by the ACCC under s. 50 of the Trade Practices Act.
The ACCC decided to oppose the proposed acquisition of FCL on 7 September 2005. A public competition assessment outlining the reason for that decision is available on the ACCC's website.
Patrick requested that the ACCC reconsider the acquisition in light of changed circumstances and in light of undertakings it offered to the ACCC. The ACCC conducted market inquiries in relation to the proposed undertakings during late March and early April 2006. In response to a number of issues raised during market inquiries, Patrick offered revised undertakings which the ACCC accepted on 13 April 2006.
While the ACCC considered the competition issues that gave rise to its decision to oppose the acquisition on 7 September 2005 were still potential concerns, circumstances had changed such that Patrick had begun to pursue capacity allocation from Pacific National in order to begin its own rail service and was also seeking to break up Pacific National. Pacific National is the leading provider of interstate container rail line-haul and is a joint venture between Toll Holdings Limited and Patrick. The ACCC considered that the proposed acquisition of FCL was an important part of Patrick's attempts to gain capacity allocation, and eventually break up Pacific National, because FCL would have provided Patrick with significant container volumes to place on Patrick's proposed new rail services.
In the event that Patrick's proposed actions in relation to Pacific National had failed to address the ACCC's competition concerns, the undertakings give the ACCC broad powers to order divestment of FCL and other Patrick assets. The undertakings also require FCL to be held separate by Patrick and Patrick is also required not to discriminate in favour of FCL over other freight forwarders.
Priceline Pty Limited
s. 65D Alleged breach of mandatory product information standards
On 24 April 2006 Priceline Pty Limited gave an undertaking to the ACCC to:
implement and maintain a permanent fixture, developed by Priceline, which will be fixed to cosmetic display units in all its stores that has plastic pockets for the insertion of ingredient lists and is removable only by use of a screw driver
appoint a Priceline cosmetic manager in each Priceline store who will be responsible for authorising all cosmetic purchases and systems of display where cosmetics are displayed outside main cosmetic display units
immediately begin monitoring the effectiveness of the permanent fixture by conducting a weekly check of the cosmetic display units
implement a corporate trade practices compliance program for Priceline employees or other persons involved in Priceline's business
implement an effective complaints handling system.
Priceline Pty Limited sold a number of cosmetic product brands that did not comply with the Trade Practices (Consumer Product Information Standards) (Cosmetics) Regulations 1991. The standard requires cosmetic ingredients to be listed on the container or on the product itself if the product is not packed in a container, or alternatively a list of ingredients be available to consumers at the point of sale. The standard also sets out requirements about how the ingredients are listed.
ss. 52, 53(e). Alleged misleading or deceptive conduct and making a false or misleading representation with respect to the price of goods or services
On 4 April 2006 Samsara Furniture and Homewares Pty Ltd gave an undertaking to the ACCC to:
only engage in comparison price advertising if the price compared to, for a product, is the price at which that product was available reasonably recently, and for a reasonable period, and where reasonable quantities of the product were sold to customers
publish corrective notices on its website
implement a trade practices compliance program
refund the purchase price of products that have been purchased by customers who relied on the comparison price advertising, in exchange for the return of the product purchased.
Samsara Furniture and Homewares Pty Ltd (Samsara) advertised its products in newspapers, magazines and on its website, throughout 2005, by making price comparisons between previous prices or ‘was’ prices for its products and current sale prices or ‘now’ prices for these products.
The ACCC has concerns that Samsara engaged in comparison price advertising for products that had not been sold by it at the previous or ‘was’ price recently enough to justify making the price comparisons to the public.
