The ACCC has instituted proceedings in the Federal Court against Thermomix In Australia Pty Ltd (Thermomix), alleging it contravened several provisions of the Australian Consumer Law (ACL) in relation to its Thermomix appliances.
The ACCC alleges that Thermomix misled customers about their consumer guarantee rights, failed to comply with mandatory reporting requirements for injuries arising from the use of the appliances, made false representations and engaged in misleading conduct regarding the safety of the TM31 model, and made false and misleading statements about its 2014 recall.
In relation to consumer guarantee rights, the ACCC alleges that Thermomix represented to certain consumers that the ACL remedies to which they were entitled could only be obtained by signing agreements with non-disclosure terms and other terms that prevented them from making disparaging comments about Thermomix. The ACCC also alleges that Thermomix represented to other consumers that it would not provide refunds or replacements as a remedy at any time.
“Consumers who have purchased a faulty product have rights under the Australian Consumer Law to remedies which businesses cannot restrict, alter, or remove, and this includes getting a repair or replacement for the product, or a refund,” ACCC Acting Chair Delia Rickard said.
In relation to the mandatory reporting requirements, the ACCC alleges that Thermomix failed to notify the Commonwealth Minister within two days of becoming aware that a person had suffered a serious injury associated with the use, or foreseeable misuse, of a Thermomix appliance. The ACCC alleges that this occurred in 14 instances because Thermomix failed to give notice of these serious injury incidents within the mandatory two-day notification period.
“The law requires that suppliers must act to notify the ACCC as soon as they become aware of any person who has suffered a serious injury associated with the goods they have supplied. This requirement exists to protect the safety of Australian consumers by helping to prevent further injuries,” Ms Rickard said.
In relation to the safety of the TM31 model, it is alleged that Thermomix made false representations and engaged in misleading conduct by representing to consumers that it was not aware of any safety issue with the TM31 by continuing to supply the TM31 when it was aware of a safety issue that ultimately led to a recall action in October 2014, and failing to disclose that safety issue to consumers as soon as it became aware of it.
“Suppliers must act swiftly to notify their customers as soon as they learn of a potential safety hazard with their products,” Ms Rickard said.
The ACCC also alleges that in March 2016, Thermomix caused false or misleading statements to be made in the media about the nature of the October 2014 recall action.
The ACCC is seeking declarations, pecuniary penalties, injunctions, corrective publication orders, compliance program orders and costs.
The first case management conference is at 9:30 am on 21 July 2017 before Justice Murphy in Melbourne.
Background
Thermomix supplied the TM31 model in Australia up until September 2014. The current model, the TM5, has been supplied in Australia since September 2014.
A voluntary recall notice in relation to a safety issue with the TM31 was published on the ACCC’s Product Safety website on 7 October 2014 (PRA 2014/14361), following notification by Vorwerk Elektowerke GmbH & Co. KG (Vorwerk), the manufacturer of the Thermomix appliances. The recall facilitated the replacement of the original grey lid sealing ring with a new green sealing for all affected TM31s.
Separate to the recall action, Thermomix and Vorwerk advise that TM31 customers should replace their sealing rings every two years. Consumers should contact Thermomix if they require a new sealing ring.
Thermomix first notified its customers of the recall safety issue by way of a Facebook post on 23 September 2014, and subsequently sent emails to affected TM31 customers notifying them of the safety issue on 25 September 2014. Approximately 105,000 of the potentially affected TM31 appliances were supplied to Thermomix for sale to Australian customers.