Fitbit (Australia) Pty Limited

The Australian Competition and Consumer Commission (ACCC) has accepted a court enforceable undertaking from Fitbit (Australia) Pty Limited (Fitbit) in relation to representations about remedies for faulty products which were likely to contravene sections 18 and 29(1)(m) of the Australian Consumer Law (ACL).

Fitbit is a subsidiary of Fitbit, Inc., which is headquartered in San Francisco, California, USA, and is a manufacturer of wireless technology products that track personal activity, also known as ‘fitness trackers’, under the brand name ‘Fitbit’.

Fitbit products are sold to Australian consumers via the Fitbit.com website and third party retailers. Consumers may also purchase services relating to its products via subscription on its Fitbit.com website.

From at least 1 January 2017, Fitbit made representations on its website and in a “Safety Instructions & Limited Warranty” document in product packaging that:

• remedies for defective products were only available within one year of the date of purchase, even though the ACL does not limit remedies for defective goods to a specific period of time
• replacement products will only be warranted under the Fitbit manufacturer's warranty for the remainder of the original warranty period or thirty days, whichever is longer, or any additional period required by law, even though the ACL does not limit remedies for replacement products that are defective to a specific period of time
• a consumer may have to pay the costs of returning defective products, even though the ACL does not require consumers to pay any significant costs of returning goods where a product is returned pursuant to a right to return under the ACL
• Fitbit is not liable for any loss or damages from a breach of any express or implied warranty, even though guarantees under the ACL cannot be excluded by contract
• membership fees will automatically renew, which may mislead consumers about the price of services if there is not adequate disclosure of the ongoing fees.

In response to the ACCC’s investigation, Fitbit:

• acknowledges that Fitbit’s conduct may have contravened section 18 and section 29(1)(m) of the ACL
• has cooperated with and responded to the ACCC’s enquiries
• extended its manufacturer’s warranty from one year to two years for Australian consumers who make a warranty claim or who deal with a Fitbit customer service representatives
• offered and agreed to amend its websites directed at Australian consumers to clarify that Fitbit terms are subject to the ACL and include the prescribed text required to be included with representations about warranties for defective goods
• offered and agreed to amend the “Safety instructions & Limited Warranty” manual in Fitbit product packaging to include the prescribed text required to be included with representations about warranties for defective goods
• undertaken to publish a notice on its website with contact details for Australian consumers to seek redress if they believe they have been denied their ACL rights or discouraged from seeking a remedy
• undertaken to amend its terms to state it will provide notice to consumers before recurring subscription fees are imposed, and
• undertaken to introduce a compliance program which includes annual training on the Australian Consumer Law for its customer service staff, a review of its complaint handling processes and a review of its processes to monitor representations made by its customer service staff.