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ACCC’s co-joined approach raises concerns

MANY consider advertising and the truth to be rather uncomfortable bedfellows, but a push by the Australian Consumer Competition Commission might just force the issue.

From consumers’ perspective, this might smooth the way for less confusing or deceptive advertising, however it’s unlikely to spell the end of the asterisk or fine print.

“In essence what we’re saying is words like ‘free’ and ‘everything’ can’t be qualified in small print,” ACCC regional director Sam Di Scerni said.

“The commission is trying to say asterisks and fine print still have a place, as long as the overall message is still readable and you don’t try to present a false message,” Mr Di Scerni said.

Several major advertisers recently have been prosecuted in relation to misleading or false advertising, among them fashion retailer Cue, Nissan and Nationwide News.

Of greater concern to the marketing industry is that, in some of these actions, the commission has co-joined the advertising client with the advertising agency.

“The consumer protection laws extend to cover (your conduct) as an advertising agency acting on behalf of retailers or other advertisers through the legal principle known as accessorial liability,” Mr Di Scerni said.

“The commission has taken action against advisers or consultants … this is certainly an indication that the commission will now look more closely at the behaviour and conduct of consultants.

“The commission monitors close-ly advertising practice and the sorts of conduct that goes on in advertising and retail.”

The rapid growth of the retail market for mobile phones and com-puters has been one of the biggest drivers in the ACCC focus on the marketing industry.

The retail market for both these products is complicated by the vast array of add-on options.

And the technical nature of computers and mobile phones mean the finer details of a deal can be masked in technical language.

“With mobile phones and computers, where there are many different types, services and add ons, we’ve found in the past five years the advertising has become more complicated,” Mr Di Scerni said.

“We’ve seen growth in the amount of competitive advertising and with that concern about the fine print and the ‘conditions apply’.

“You just can’t qualify terms like ‘free’ or ‘everything’.”

The Advertising Federation of Australia is quick to assure agencies and clients that this does not signal an end to advertising as we know it.

“We are basically assuring advertising agencies and advertisers that this is not the end of advertising, it’s just that they will have to be some changes in the way advertising is produced – from the brief right through to execution,” AFA manager industry issues Gawen Rudder said.

“The ACCC has put advertising on the radar screen and it’s not afraid to co-join agencies and advertisers concerning false or misleading conduct. This is not the end of creative advertising … but this is a sea change and it’s the introduction of a commonsense-based compliance program.”

Most agencies already use a traffic system to track advertising jobs through the agency and it’s likely the compliance program will fit into existing traffic systems.

Advertising agencies already have to get television commercials checked by FACTS – the Federation of Australian Commercial Tele-vision Stations.

But, in essence, FACTS is working to protect the broadcasters from any legal action. It doesn’t provide any legal protection for advertising agencies.

“There are a lot of people who actually feel that once they’ve had an ad FACTed that it’s legally cleared, but it’s not,” Mr Rudder said.

“And the ACCC can’t become a clearance body because the ACCC doesn’t take action. The action is taken in the criminal court.”

Far more worrying for the marketing industry is the enviable success rate the ACCC has in relation to prosecutions.

It sends a pretty clear message to any agencies feeling a bit apathetic and there’s little doubt the ACCC will go after the “big scalps” first to make sure the message is heard.

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