Clews Holdings Pty Ltd trading as Revitalife

The Australian Competition and Consumer Commission (ACCC) has accepted a court enforceable undertaking from Clews Holdings Pty Ltd trading as Revitalife in relation to representations made to consumers regarding their refund rights that likely contravened section 29(1)(m) of the Australian Consumer Law (ACL), and its sales practices that likely contravened sections 74 and 18 of the ACL.

Revitalife markets and supplies therapeutic adjustable beds and recliner lift chairs which use whole body vibration therapy. These products are class 1 medical devices registered on the Australian Register of Therapeutic Goods.

From at least 1 July 2019 until 7 January 2022, as part of its business model, Revitalife conducted ‘Outbound Sales’, where it contracted third-party lead generators to contact, or itself directly contacted, consumers on an unsolicited basis, to conduct a ‘Sleep Assessment’. Revitalife then organised and attended an in-home visit with the consumer, during which it sold, or attempted to sell, therapeutic adjustable beds and recliner lift chairs.

Revitalife acknowledges that, since at least 1 July 2019, it likely contravened section 29(1)(m) of the ACL by representing to some consumers seeking a remedy on the basis the product failed to comply with a consumer guarantee, that they were not entitled to a refund as they cancelled their purchase agreement outside the cooling off period for Outbound Sales, or no refunds applied for Retail Sales (sales generated by consumers contacting Revitalife), when some consumers may have been entitled to a full refund as the product may have had a major failure or several minor failures.  

Revitalife admits that, since at least 1 July 2019, it likely contravened section 29(1)(m) of the ACL in relation to Outbound Sales, by:

• representing to some consumers who terminated their purchase agreement within the cooling off period and who were entitled to a full refund, that it was entitled to retain delivery, installation and/or pick up fees and deducted these fees from consumers’ refunds; and
• representing to some consumers for whom delivery of the product was made within 10 business days of signing the purchase agreement, that they were not entitled to return the product and receive a refund as they cancelled outside the 10-day cooling off period, when in fact these consumers were entitled to terminate their purchase agreement under the ACL and receive a refund as a 6-month cooling off period applied.

Revitalife admits that, from at least 2017 to March 2021, in calling upon consumers for the purposes of negotiating unsolicited consumer agreements, it failed to, as soon as practicable and in any event before starting to negotiate, clearly disclose the true purpose of the unsolicited visit and its identity, and/or advise consumers that it was obliged to leave the premises immediately on request, in contravention of section 74 of the ACL.

Revitalife acknowledges that it likely engaged in misleading or deceptive conduct in some instances, in contravention of section 18 of the ACL, by:

• since at least 1 July 2019 to 30 June 2021, failing to adequately disclose to some consumers that the true purpose of its in-home visit was to sell Revitalife products; and
• since at least 2017 until March 2021, representing to some consumers that product recommendations were based on the results of the Health Assessment completed by the consumer when in fact this was not always the case.

Revitalife has undertaken actions to rectify the conduct of concern and minimise the risk of future contraventions of the ACL, including:

• reviewing its customer files for the period 1 September 2016 to 16 August 2021 to identify consumers who may not have received their entitlements (or full entitlements) under the ACL, and refunding these consumers accordingly. Revitalife has paid refunds to 49 consumers totalling $57,646.00;
• engaging external lawyers to provide competition and consumer law training to all Revitalife staff; and
• making changes to its internal policies and procedures to ensure the issues of concern to the ACCC do not arise in future.

Further, to address the ACCC’s concerns, Revitalife has provided the ACCC with a section 87B undertaking that it will:

• not make false or misleading representations to consumers about their rights to a refund or full refund, in accordance with consumer guarantees or pursuant to the termination of their contract within the relevant cooling off period;
• provide relevant training materials to external lawyers for review to ensure compliance with the ACL, and ensure its training materials include a checklist which steps through its section 74 obligations, for sales representatives to complete during in-home visits, should it recommence Outbound Sales during the term of the undertaking; and
• implement a fulsome compliance program for at least three years, which includes ACL training for all Revitalife employees and a review and update of its complaints handling system.