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Commercial Court Seminar Australian Consumer Law 20 Feb 2013

Commercial Court Seminar Australian Consumer Law 20 Feb 2013. WHEN ADVERTISING GOES WRONG - ACTING FOR THE ACCC OR THE ADVERTISER Charles Scerri, Q.C. SCENARIO. Advertising – print, TV, radio, billboard Alleged misleading conduct Complaint to ACCC

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Commercial Court Seminar Australian Consumer Law 20 Feb 2013

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  1. Commercial Court Seminar Australian Consumer Law20 Feb 2013 WHEN ADVERTISING GOES WRONG - ACTING FOR THE ACCC OR THE ADVERTISER Charles Scerri, Q.C.

  2. SCENARIO • Advertising – print, TV, radio, billboard • Alleged misleading conduct • Complaint to ACCC • Misleading conduct (s.18) not false or misleading representations (s.29)

  3. APPROACHACCC & ADVERTISER • What? • Why? • How to respond?

  4. WHAT?ACCC • Complaint • Check advertising • Identify the express and implied representations that are allegedly misleading • Make enquiries as to underlying facts - this may be informal or formal (s. 219 substantiation notices or s.155 examinations)

  5. WHATThe Advertiser • Complaint • Check advertising • Identify the express and implied representations that are allegedly misleading • Can the claims be substantiated?

  6. WHYThe ACCC • Why did it happen? • Deliberate or inadvertent? • Corporate culture? • Compliance program?

  7. WHYThe ADVERTISER • Why did it happen? • Deliberate or inadvertent? • Who approved the advertising? On what basis? • Was the compliance program followed?

  8. HOW TO RESPONDACCC • Request that advertising cease • Substantiation notice (s.219)? • Public warning notice? • Interlocutory injunction? • Enforceable Undertaking? • Court Proceedings? • What final relief is appropriate? • Compensatory orders for consumers?

  9. HOW TO RESPONDThe Advertiser • Does advertising need to be discontinued? • Or modified? • Can the express and implied representations be substantiated? • Should an undertaking be offered to avoid an interlocutory injunction? • Should an enforceable undertaking be offered to avoid court proceedings? • Does the compliance program need review? • Can the ACCC be persuaded that Court proceedings are not necessary? What can the ACCC be offered that it would not get in Court? • What final relief can be offered to the ACCC by consent? • Is it appropriate to offer compensation for consumers?

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