Legal obligations of marketing
When setting your prices and advertising your products or services, you need to be mindful of the relevant regulations, to ensure you aren't misleading your customers.
Consider the following list of regulations when conducting your marketing activities:
When you advertise or market your business you need comply with a number of regulations:
Misleading & deceptive conduct
When promoting your products or services, you need to ensure that any branding, statement, quote or any other representation is not false or misleading. Component pricing is when the price of a product or service is advertised or displayed in separate parts. For example, when the single price of a car is displayed and additional on road costs are listed separately. If you advertise using component pricing you must also provide the full price inclusive of additional costs in a more prominent way.
Bait advertising is where a product is advertised at a certain price without a reasonable supply. Bait advertising is illegal if a business sells the product knowing that they cannot meet expected demand.
Competitions, lotteries or promotions over a certain amount are regulated by your state or territory through a permit. You can download a permit form from the Australian Business Licence Information Service (ABLIS) website.
Signage including 'A' frames, sandwich boards, or permanent signs on buildings, footpaths or roads are regulated by your state or territory government. Before you erect a sign, you need to apply for a permit and in some circumstances you may also require public liability insurance.
You can download a permit form from your state or territory government through the ABLIS website.
Most direct marketing activities are regulated by federal or state laws. Before you conduct direct marketing, check that you comply with the privacy legislation and spam regulations.
Do Not Call Register
If you wish to conduct telemarketing or fax marketing, 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.
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.
Care must be taken when you collect, use, secure and disclose a customer's personal information to ensure you comply with the Privacy Act 1988. Find out more Online business.
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.
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.
Spruiking is where an operator entices walk-in traffic by marketing products or services to passers-by (e.g. when using a microphone). Spruiking is regulated at the state level and may require a permit. Find out if you need a permit on the ABLIS website.
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.
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.
Trade mark laws
When preparing your branding, business name or website name, you need to ensure 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 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.
When you export or expand overseas, it's important to comply with both Australian and international regulations including:
International pricing regulations
If you're considering exporting your products or services, ensure you're aware of any international regulations that may impact your pricing decisions. See the Austrade website for further details on how to determine your export prices as well as the legal issues that may affect your decision.
When preparing your branding, business name or website name, you need to ensure it doesn't breech Australian or international trademark laws.
What to do...
- Check the ACCC's Advertising and promoting your business page for information on advertising under the Competition and Consumer Act 2010 (formerly known as the Trade Practices Act 1974).
- Find out more about the Do Not Call Register.
- Find out more about customer privacy.
- Check the ACCC for details about pricing and your obligations.
- Visit the IP Australia website for details on Intellectual property issues.
- Find out more on the use of music, on the APRA-AMCOS website.
- See the Austrade website for the legal issues around exporting goods and services.
- Consult an experienced business advisor, accountant or solicitor.