On 1 January 2011 the Trade Practices Act 1974 was renamed the Competition and Consumer Act 2010. The Australian Competition and Consumer Commission is reviewing this website and its publications to reflect this name change, and changes to the law brought about by the Australian Consumer Law (ACL) which forms part of the renamed Act. For further information call the ACCC Infocentre on 1300 302 502 or visit the Australian Government website www.consumerlaw.gov.au for detailed guidance to the new law.
Active competition and innovation in markets around the world has given consumers access to a huge range of choice in goods and services.
No matter how a business communicates with you—whether it is through packaging, advertising, logos, endorsements or sales pitch—you have the right to receive accurate and truthful messages about the goods and services that you buy.
There are laws in place to protect you from false, misleading and deceptive selling practices.
What is misleading & deceptive conduct?
There is a very broad provision in the Australian Consumer Law that prohibits conduct by a corporation that is misleading or deceptive, or would be likely to mislead or deceive you.
It makes no difference whether the business intended to mislead or deceive you—it is how the conduct of the business affected your thoughts and beliefs that matters.
If the overall impression left by an advertisement, promotion, quotation, statement or other representation made by a business creates a misleading impression in your mind—such as to the price, value or the quality of any goods and services—then the conduct is likely to breach the law.
False claims
As well as the broad provision of the Australian Consumer Law that prohibits misleading and deceptive conduct in general (see above), there are also some specific provisions.
For example, the law also says businesses must not make false claims about:
the quality, style, model or history of a good or service
whether the goods are new
the sponsorship, performance characteristics, accessories, benefits and uses of goods and services
the availability of repair facilities or spare parts
the place of origin of a good (for example, where it was made or assembled)
a buyer's need for the goods or services
any exclusions on the goods and services.
If a business makes a false or misleading claim or representation about one of the issues on this list, then the conduct is likely to breach the law.
Representations about price
The price of a good or service is often a good indication of its quality or its availability of supply. Price comparisons can also give you an indication of whether you are getting a good deal or a bargain.
There are also special laws relevant to price advertising and promotions. A business risks breaching the law if it:
makes inaccurate or misleading price comparisons (for example 'was' and 'now' prices)
represents that an advertised price is the total price that you will have to pay when in fact it is not
advertises goods and services at a specific price when it is, or should have been aware, that it would not be able to supply enough of the good at the price for a reasonable amount of time. This is called bait advertising.
See our page on misleading pricing for more information about bait advertising and misleading claims about prices.
Whether or not conduct is considered misleading or deceptive will depend on the particular circumstances of each case. Conduct that misleads one group of consumers will not necessarily mislead every consumer.
Some examples of conduct that may be misleading or deceptive are:
a mobile phone provider signing you up to a contract without telling you that there is no coverage in your region
a real estate agent misrepresenting the characteristics of a property, for example, advertising 'beachfront lots' that are not on the beach
a jewellery store promoting that a watch 'was' $200 and is 'now' $100 when the store never sold the watch for $200
a business predicting the health benefits of a therapeutic device or health product but having no proof that such benefits can be attained
a transport company using picture of aeroplanes to give you the impression that it takes freight by air, when it actually sends it by road
a company misrepresenting the possible profits of a work-at-home scheme, or other business opportunity
failing to include in advertisements that sale stock is limited in number or available only for a limited time.
What is 'puffery'? Is 'puffery' misleading?
Puffery is a term used to describe wildly exaggerated, fanciful or vague claims for a product or service that nobody could possibly treat seriously, and that nobody could reasonably be misled by. Examples of puffery include 'best food in town' or 'freshest taste ever'.
Puffery in advertising is a practice that is generally not prohibited by the Australian Consumer Law.
I think I have been misled—what can I do?
Any claims or representations made by a business must be accurate and truthful. If you think a business has been dishonest, exaggerated the truth, or created a misleading impression, then you should report your concerns. You may not be the only consumer affected.
Tell the trader you are unhappy and make a complaint
If you think you have been misled about the price of your purchase, you should attempt to resolve your concerns with the trader. If you are not sure how to approach the trader or you are unable to negotiate a suitable resolution, follow the steps on our How to complain page. This page can help you write a letter to a trader and give you guidance about who else you can contact for assistance.
What can the ACCC do?
We can take action in court against corporations and related individuals involved in misleading conduct, and may apply to the court for an injunction and other orders. In enforcing consumer protection laws, we focus on industry-wide conduct and conduct that affects many consumers, to achieve outcomes.
We cannot take action in all circumstances of misleading conduct. We are more likely to take action against a business for misleading advertising if it has been carried out through a medium that reaches a wide audience, such as over the internet, on national television, or through a nation-wide print advertising campaign.
While we use enforcement action to obtain compliance, our preferred option is to show businesses how to take preventative steps to ensure that contraventions do not occur.
If you become aware of misleading conduct you should report the matter to us as it may be valuable in our future compliance work—see Help ACCC Help Consumers.
Could the office of fair trading in my state help me?
There are offices of fair trading in each state and territory that can help with local issues of misleading conduct—if the business involved is a local trader, or the matter is within a certain locality. In some circumstances the offices of fair trading can help you to resolve issues with businesses, or provide information about lodging claims in your local small claims tribunal.
I think I was misled about a financial service. Can the Australian Securities & Investment Commission help me?
The Australian Securities and Investment Commission (ASIC) is the consumer protection regulator for financial products and services. ASIC has powers to protect consumers against misleading or deceptive and unconscionable conduct affecting all financial products and services. If your concern relates to misleading or deceptive conduct involving a financial product or service, such as credit, banking, investments, superannuation, or insurance, the ASIC may be able to help you. Contact ASIC on 1300 300 630 or visit MoneySmart, ASIC's consumer website, to learn more about ASIC's consumer protection role and functions.
Can I take private action?
If you have suffered a loss as a result of a business' misleading or deceptive conduct or misrepresentation, you may have a private right of action under legislation. Courts can order damages, injunctions and other orders against businesses found to have engaged in misleading or deceptive conduct. If you have lost money as a result of misleading conduct, you may need to seek legal advice about taking court action against the business involved. Alternatively, depending on the amount of money involved, you may be able to lodge a claim in your local small claims tribunal.
