GardenWay Nurseries (QLD) Pty Ltd - s.87B undertaking

GardenWay Nurseries (Qld) Pty Ltd advertised its products in newspapers and on its website, throughout 2004 and into early 2005, by making price comparisons between a “sale” or “liquidation” price for its products and a “previous” or “original” price for the products. This is known as comparison price (or two-price) advertising.

The ACCC has concerns that GardenWay engaged in comparison price advertising for products that had not been sold by it at the “previous” or “original” price recently, or for a reasonable period previously or in reasonable quantities to justify making the price comparisons to the public.

The ACCC also has concerns that GardenWay made claims that the advertised price for its products was a “liquidation price only” when it had not previously sold the product at any other price, and that GardenWay advertised that some its products were “new” when the products were not new because they had been stocked for a considerable period of time previously.

The ACCC therefore expressed its view that the claims made by GardenWay in its advertisements may have been misleading or deceptive, or may have constituted false or misleading statements concerning prices, in contravention of sections 52 and 53(e) of the TPA.

GardenWay has provided court-enforceable undertakings to the ACCC that:

• GardenWay will only engage in comparison price advertising in future only if the price compared to, for a product, is the price at which that product was available for a reasonable period and where reasonable quantities of the product have been recently sold to customers;
• GardenWay will only advertise that the price of its products is a “liquidation price” where the product is being sold in a genuine liquidation at a genuine liquidation price;
• GardenWay will only advertise that its products are “new” where the product advertised is a genuinely new product line that has not been stocked and offered for sale by GardenWay for a reasonable period of time previously;
• GardenWay will publish a notice on its website for a period of 8 weeks, explaining the ACCC’s concerns to customers and outlining the main obligations in the undertakings; and
• the directors of GardenWay will undertake education and training in relation to Part V of the TPA.