Write about the Fundamentals of Law for Competition and Consumer Act.
Most of the Australian Businesses uses television, radio, print media or internet as the means to advertise their products and services (Ahmad 2016). The Australian Consumer Law (ACL) is a part of the Competition and Consumer Act 2010 (The Act), aims at ensuring fair-trading and safeguarding the rights of the consumers.
Whether misleading or deceptive claims can be made with respect to the advertisement of the product ‘Slendertone’.
The Australian Consumer law (ACL) is applicable to persons which also includes business forms and corporations. Some of the provisions of the ACL is also applicable to ‘consumers’ and some other provisions apply generally in trade and commerce (Pearson 2017). In respect to the issue arising in the given scenario, the ACL guarantees protection against unacceptable conduct such as deceptive or misleading contract under section 18 of the ACL and other specific forms of conduct such as false representations under section 29 of the ACL. As the issue identified in the scenario is related to advertising and selling, there are two essential rules pertaining to advertisement and selling under the Australian consumer law, which are as follows:
- A person is prohibited from engaging in a conduct that is likely to mislead or deceive;
- A person is prohibited from making any misleading or false statements or claims;
However, these two rules often overlap with each other and a particular statement may be in contravention of both these rules. Section 18 of the ACL prevents a person from engaging into conduct that is misleading or deceptive or any conduct that creates false impression regarding the value, price or quality of services as was held in Australian Competition and Consumer Commission v Telstra (2007). In order to establish that certain conduct was misleading or deceptive, the plaintiff must prove that the conduct leads the person into error and he relied on the misleading or deceptive conduct (Howells and Weatherill 2017). Such conduct has resulted in loss pr harm suffered by the plaintiff. Such conduct may include creating false impression using the words like free, puffery, silence instead of disclosing relevant information. However, the conduct does not have to be deliberate as was held in Google Inc v Australian Competition and Consumer Commission  249 CLR 435. The word ‘likely to be deceiving or misleading’ stipulated under section 18 of ACL implies that the plaintiff need not prove whether the conduct had deceived or misled when the conduct is already considered as misleading or deceptive.
In addition to the fact that a person is prohibited from engaging into misleading or deceptive conduct, it is unlawful for any business to make any false or misleading claims with respect to their concerned products or goods. A misrepresentation is a statement or claim, which is false or misleading that is made by one party to another party. These false or misleading claims are made through advertisements through TV, Radio, internet or print media that is prohibited under section 29 of the ACL in relation to composition, value or grade or quality of the goods or services as was ruled in Given v C Holland (Holdings) Pty Ltd .
Any person aggrieved of any misleading conduct under section 18 of the ACL, the person shall be entitled to claim compensation under section 236 and in case any advertisement is misleading or deceptive, the aggrieved party shall be entitled to obtain an injunction order under sections 232-235 of the ACL. The other form of remedies that are available include modification or rescission of contract, infringement notices public warning notices, non-party consumer redress and disqualification notices under section 237 and 243 Australian Consumer Law. The ACCC exercises a range of compliance tools to prevent contravention of the Act including consumer education and work with agencies (Hunt 2015). The Act also provides the ACCC with a range of enforcement remedies such as court enforceable undertakings and court-based outcomes under section 87B of the Act.
On the facts here, the advertisement of ‘Slendertone’ claims to tone any part of the body and provide benefit of workout without working out. In practice, the product does not provide any of the benefits it promises to provide in the advertisement. The advertisement is in contravention of section 18 and section 29(1) of the Australian Consumer law. The advertisement involves conduct that is likely to mislead or deceive its targeted audience, which is prohibited by section 18 of the Act. This is because, the advertiser has created an impression that would lead several consumers into error who would relies on such conduct (Hunt 2015). It is a well-known fact that there are other consumers other than the targeted audience who may easily rely on the false impression and be deceived or misled as the overall impression created by the conduct is false. Under such circumstances, the aggrieved person may claim damages under section 236 or obtain injunction or compensatory order under section 237 of the Act.
The advertisement is also in contravention of section 29(1) of the ACL as it made false or misleading claims with respect to the product ‘Slendertone’ and its features. The company had used comparative advertising technique to promote the product and any reasonable person would rely on the false representation created by the advertisement and would be misled or deceived.
It can be concluded that the consumers under the Australian Consumer Law shall be entitled to damages or compensatory orders for the damage suffered or the loss caused by the product. Although the ACCC may accept court enforceable undertakings under section 87B of the Act or may issue an infringement notice against the person or company for commission of breach of section 18 and 29(1) of the Act, but it is better if the ACCC resort to litigation. The court may either make declaration about the breach committed by the company regarding “slendertone’ or require the company to publish notice about their conduct and rectify the advertisements. The ACCC may seek monetary penalties against the company or claim conviction for such infringement.
Ahmad, F., 2016. 07_False and Misleading advertisements-Legal Perspectives.
Australian Competition and Consumer Commission v Telstra (2007)
Competition and Consumer Act 2010 (The Act)
Given v C Holland (Holdings) Pty Ltd 
Google Inc v Australian Competition and Consumer Commission  249 CLR 435
Howells, G. and Weatherill, S., 2017. Consumer protection law. Routledge.
Hunt, K.M., 2015. Gaming the system: Fake online reviews v. consumer law. Computer Law & Security Review, 31(1), pp.3-25.
Pearson, G., 2017. Further challenges for Australian consumer law. In Consumer Law and Socioeconomic Development (pp. 287-305). Springer, Cham.