The Commerce Commission has today announced its compliance and enforcement priorities for the year ahead. Misleading pricing practices, exclusive arrangements, and non-notified mergers are new areas of particular interest.
The Commission's priorities are not the only areas in which the Commission will take action – but will guide the prioritisation of cases and put businesses on notice of the particular areas under the spotlight. In short, the Commission is highly likely to act if it sees unlawful conduct in those areas.
The new priorities retain three specific priorities from the 25/26 priorities, while adding two new priorities:
New priorities
- Pricing and promotional practices: practices that mislead consumers about price, savings or urgency, with the Commission signalling that the accuracy of "was/now" pricing will be a particular area of focus.
- Exclusive arrangements that impact competition: arrangements that make it harder for other businesses to compete, such as limiting access to customers or suppliers.
Priorities continued from last year
- Cartels in public procurement: cartel conduct impacting the competitive process for the procurement of public services and infrastructure contracts.
- Online sales conduct: practices such as fake reviews, misleading scarcity claims, misleading social proof sales tactics, drip pricing, and subscription traps.
- Breaches in the grocery sector: with a focus on accurate pricing and promotions, compliance by retailers and wholesalers with codes and good faith obligations, and enforcement of obligations that promote competition (eg, wholesale access). The Commission has noted that it is prioritising investigations about rebates, discounts and other payments charged to suppliers.
Enduring priorities of the Commission include cartels, anti-competitive conduct, actions that support its market and economic regulation functions, and product safety (particularly in relation to children's products). Notably this year, the Commission has added non-notified mergers as a new enduring priority, reflecting concerns about firms bypassing the voluntary notification regime. It has also removed "vulnerable consumers" as a standalone priority, noting that considering vulnerable consumers already underpins all of its work.
While not listed in the priorities, the Commission said that other areas of particular focus include:
- Unconscionable conduct: while no longer a specific priority, the Commission will keep a close eye on this area and is taking its first case in a B2B setting.
- Fuel surcharges: in the context of the current fuel crisis, the Commission is focused on ensuring fuel surcharges are not misleading consumers.
If you want to know more about the Commission's priorities and how they might be relevant to your business, or help in refreshing your compliance programmes, contact a member of our competition team.
This article was co-authored by Jonty du Toit (solicitor) and Nicole Arundell (law clerk).
