As the retail market tightens and franchisees chase the consumer
dollar more aggressively at store level two recent cases provide a
timely reminder of the importance of ensuring that all
advertisements and marketing initiatives comply with the Trade
In ACCC v Carrerabenz Diamond Industries Pty Ltd, Carrerabenz
was involved in the business of buying and selling diamonds. The
ACCC commenced proceedings against Carrerabenz claiming that six
advertisements placed in newspapers made false or misleading
representations in connection with the supply or possible supply of
goods, therefore breaching section 75AZC of the TPA. The
advertisements each specified a "usual mark price" and a
"crazy price" in respect of each item of jewellery.
However, the advertisements were said to be misleading because, in
each instance, each item of jewellery had not been offered for sale
to the general public at the "usual mark price." As a
consequence of this breach of section 75AZC of the TPA, Carrerabenz
was fined $250,000.
In 2008, South Australian wine producer, Moving Juice Pty Ltd
advertised wine on its website using "was" versus
"now" price comparisons. However, Moving Juice had not
offered the advertised wines at the "was" price for over
6 months. In this instance, the ACCC was concerned that the
advertising had misled and deceived customers in contravention of
sections 52 and 53(e) of the TPA. Moving Juice has now given the
ACCC court enforceable undertakings that it will not, among other
things, use "advertising or other promotions that contain
false, misleading or deceptive representations with respect to the
price of published goods."
These cases reinforce the importance of complying with the TPA,
and having an effective compliance program that covers not only
franchisor staff but franchisees. There are substantial penalties
for breach of the TPA, including fines and orders to undertake
corrective advertising. It is not uncommon for the ACCC to seek to
join the franchisor even if the infringement is by a
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