1. COMMERCIAL COURT SEMINAR AUSTRALIAN CONSUMER LAW 20 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. APPROACH ACCC & 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. WHAT THE ADVERTISER Complaint Check advertising Identify the express and implied representations that are allegedly misleading Can the claims be substantiated?

6. WHY THE ACCC Why did it happen? Deliberate or inadvertent? Corporate culture? Compliance program?

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

8. HOW TO RESPOND ACCC 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 RESPOND THE 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?