Are You Aware of Your Obligations When Marketing Your Goods and Services?

The year has only just begun and companies are starting to return to their usual business. Time to take stock and think about how compliant you are when marketing your goods and services. A business needs to ensure, that it adheres to all relevant regulations to avoid distractions due to customer complaints, disputes raised by the competition or the consumer watch dog, ACCC. Your business should undergo a regular compliance health-check. Here are some considerations when promoting your business:

Be aware of and comply with all relevant regulations in relation to so called “direct marketing”!

When it comes to selling products or services directly to the relevant public in Australia, for example via mail order or telephone, a variety of regulations was put in place to protect consumers and regulate competition. Chapter 7 of the Australian Privacy Principle is about using and disclosing personal information for the purposes of direct marketing, where reasonably expected by the individual. Most direct marketing activities are regulated by Australian federal or state laws. Before you implement any direct marketing tasks into your business strategy to target potential new customers, ensure that you comply with the privacy legislation and spam regulations.

Care must be taken when collecting, using, securing and disclosing personal information to ensure compliance with the Privacy Act 1988.

Don’t try to outsmart the system by employing ‘bait advertising’ technics!

You may be aware of advertising practices known as ‘bait advertising’ in which potential new customers are attracted by a promise of a sale or an inexpensive good; once the customer’s attention is captured, the scheme is changed by declaring the product as unavailable. The customer is then directed to a similar, more expensive good that is available for purchase. This method is often found in online advertising or in newsletters.

Using ‘bait advertising’ is illegal; a business that doesn’t provide enough stock to meet the expected demands can be penalized by the consumer watchdog imposing significant fines.

You want to run a competition, lottery or promotion to attract customers?

Competitions, lotteries and promotions inherently have a gambling component and are therefore regulated by state or territory laws dictating license and permit requirements. If you are considering to carry out any of these activities to bust customer traffic, you must download a permit form and apply for permission, before you start.

Have your business signage approved!

Any signage, including, but not limited to including ‘A’ frames, sandwich boards, or permanent signs on buildings, footpaths or roads are regulated by state or territory government. Before your business commences with displaying any new signs, you need to apply for a permit and in some circumstances you may also require public liability insurance.

An application form to get a permit can be obtained by  downloading the respective permit application form from the respective state or territory government.

Do not create false impressions!

One might think, it is the bleeding obvious, but when promoting your business, you must ensure that all of your statements, quotes and any other representations are true and not false or misleading. For instance, it is crucial to ensure that when you advertise using so called “component pricing”, where different price components are listed separately, you must always provide the full price inclusive of any additional costs in a more prominent way.

Make sure the price is nice!

When you price your products or services, or advertise a price, you need to comply with pricing regulations and display the price clearly and accurately.

If you’re considering exporting your products or services, ensure you are well aware of any international regulations that may impact your pricing decisions. See the website of the Australian Trade and Investment Commission for further details on how to determine your export prices as well as the legal issues that may affect your decisions.

When preparing your branding, business name or website name, you need to ensure it doesn’t breech Australian or international trademark laws.

Do not infringe any Intellectual Property and ensure your business is protected against competitors!

When you use another person’s or business’s intellectual property for the purposes of branding or selling, you need to comply with Intellectual Property (IP) regulations including trade mark laws. When preparing your branding, business name or website name, you need to ensure you aren’t in breach Australian or international trade mark laws. If you want to use music in your advertising or even play music in your business, you need to either ensure, that you are the copyright owner of all songs or else you obtain a licence with the Australasian Performing Right Association Limited (APRA) and Australasian Mechanical Copyright Owners Society Limited (AMCOS). To find out more visit the APRA-AMCOS website.

Know the global rules to play by! – International Regulations

When you export or expand to overseas it’s important to comply with both Australian and international regulations. There are too many rules to refer to, speak to an expert for the region or country you wish to expand to so you can stay clear of any pitfalls.

Don’t create a “bad taste” with SPAM!

Before you send out marketing material via email you need to ensure you comply with the Spam Act 2003. Under the Act it’s illegal to send unsolicited commercial electronic messages without consent.

‘Do Not Call Register’

Telemarketing or fax marketing are ways to reach out to your potential new customers. If you consider these options, you need to comply with the Do Not Call Register Act 2006. The Do Not Call Register is a list of protected phone and fax numbers. If you contact a number on the register, you may be in breach of the Act and could face penalties and enforceable undertakings.

Brochures and your car

It is quite common that potential new customers are shopping around, collating materials like brochures and flyers that contain all the information that enable them to make informed decisions about what product to purchase. There is nothing wrong with handing out brochures or loose leaf materials, but bear in mind, handing out brochures, flyers or promotional materials on public property typically requires a permit from your state or territory government. You can download a permit form from the ABLIS website. Under state environment protection legislation, it may be illegal to place advertising material on a vehicle.

Make some noise but get the permit!

Should you consider approaching people in traffic (so called ‘Spruiking’), whether it be drivers, pedestrians or bike riders, a permit may be required. Spruiking is regulated at the state level, you can find out if you need a permit on the ABLIS website.

Nail it! Do your bill posting legally!

Bill posting is where a brochure or other promotional material is attached to a piece of public property. Some states have designated bill poster locations and others require a permit. Find out if you need a permit on the ABLIS website.

Contact our Business Advisors and IP Consultants, we can help you comply with the relevant legislation when advertising.