One
of the roles of the ACCC is to enforce any actions of misleading and deceptive
conduct committed by business. However, it seems like the ACCC is so
busy regulating Telstra and considering the many mergers and acquisitions
happening at the moment that poor consumers are getting forgotten.

An
example of misleading and deceptive conduct that seems to go unnoticed is the
common practice of businesses advertising a product for a certain amount after
the consumer claims cash back from the manufacturer. The clearest example of
this behaviour is Officeworks and Hewlett Packard’s previous habit of
advertising products at $599.00* in very large type and beneath it, in
far smaller type, at $699.00. The HP product does
not cost actually $599.00. Rather, the consumer is required to pay $699.00 to
Officeworks and later claim a $100.00 refund from HP.

This
is where things get tricky. Neither Officeworks (at the point of sale) nor HP (in
the product packaging) provide any guidance as to how
the consumer would receive the refund. Rather, the consumer is required to call
HP and actually request a refund form (the form is also able to be downloaded on
the HP website but is incredibly difficult to locate).

After
the form is obtained, the purchaser is then required to fill in three pages of
information (including a bank account to which HP can refund the money) and send
the form back to HP. A consumer would have a fair case to argue that the HP
product purchased from Officeworks does not cost $599.00. To receive the $100.00
refund, the consumer needs to call HP, spend an hour filling out and posting the
form, have a valid bank account and then wait for upwards of five months
before receiving a cent.

Of
course, it is highly unlikely that any consumer would bother to take action for
the sake of a few dollars – HP and Officeworks know this. That is exactly why
they are able to commit the alleged misleading and deceptive behaviour and be
comfortable in the fact that it is a virtual certainty that the ACCC will not so
much as furrow its brow. This is despite the ACCC noting on its website that
“businesses
should focus on the overall impression given to the consumer, especially when
using techniques such as asterisks and associated fine
print”.

In
fairness to the consumer watchdog, its resources are limited. The ACCC is not
able to enforce every breach of the Trade Practices Act, especially the minor
ones – it has its hands full at the moment with the spate of mergers, as well as
investigations into Telstra. As a result, big business knows that so long as
its behaviour is not too dodgy, it can get away with a degree of potentially illegal,
immoral and lucrative conduct.

Perhaps
a solution could be to split the ACCC into ACCC Wholesale and ACCC Retail. The
bodies would be run and funded separately. The wholesale section, which could
continue to be governed by Graeme Samuel, could have power to approve mergers,
industry regulation (such as gas and telecommunications) and monitoring
anti-competitive conduct (cartels). By contrast, ACCC Retail could focus on the
real consumers, prosecuting big business for smaller offences, such as
misleading and deceptive conduct.

Peter Fray

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