How Can Your Business Avoid Misleading or Deceptive Conduct?

If you sell products or services in Australia, the Australian Consumer Law (ACL) applies to you. One of its core rules is simple on paper but easy to get wrong in practice: don’t engage in misleading or deceptive conduct.

The good news is you can dramatically lower your risk with some clear processes, well-drafted documents and team training. In this guide, we’ll unpack what “misleading or deceptive” means in real life, the common traps for businesses, and practical steps to keep your marketing, sales and customer communications on the right side of the law.

We’ll also cover the contracts and policies that support ACL compliance so you can set your business up with confidence from day one.

What Is Misleading or Deceptive Conduct Under the ACL?

Under section 18 of the Australian Consumer Law, a business must not engage in conduct that is misleading or deceptive, or likely to mislead or deceive. This applies to anything you say or do in trade or commerce, including your website, ads, sales conversations, packaging, social posts, emails, and even silence in some situations.

It’s not just about outright lies. You can breach the ACL if you create a misleading overall impression, even if each individual statement is technically true. Courts look at the “dominant message” your audience would reasonably take away in context.

To dig deeper into what counts as misleading, it helps to read a plain-English overview of section 18 of the ACL alongside a breakdown of the elements of misleading or deceptive conduct. These basics underpin all your day-to-day marketing and sales decisions.

Importantly, intent isn’t required. You can accidentally mislead customers and still face consequences. That’s why building preventative compliance into your processes is essential.

Common Pitfalls That Catch Businesses Out

Most businesses don’t set out to mislead. Issues arise because claims aren’t verified, disclaimers are missing or too small, or information is out of date. Watch for these common risk areas:

• Overstated benefits or results: Promising outcomes you can’t consistently deliver, or suggesting a guarantee where none exists.
• Comparative claims: Saying your product is “the best” or “cheaper than competitors” without solid, current evidence.
• Was/Now pricing and discounting: Showing a “RRP” or “was $X” price that was never genuinely offered for a reasonable period. If you use sales or RRP, make sure you understand advertised price laws.
• Hidden qualifications: Burying important conditions in fine print, or using disclaimers that are unclear or contradictory to the headline claim.
• Omissions: Failing to disclose material information that could change a customer’s decision (for example, add-on fees, subscription auto-renewals, or key product limitations).
• “Free” or “risk-free” claims: Using “free” when it’s bundled into another fee, or “risk-free” when cancellation fees apply.
• Reviews and testimonials: Editing or incentivising reviews without disclosure, or posting fake reviews. Businesses should understand their obligations when handling fake Google reviews.
• Environmental or ethical claims: “Greenwashing” (e.g., “eco-friendly,” “sustainable,” “100% recyclable”) without clear evidence to back it up.
• Future representations: Statements about what will happen in future (delivery dates, supply, performance) made without reasonable grounds.

A practical rule of thumb: if a reasonable customer could walk away with the wrong impression, rethink the wording or presentation before publishing.

Practical Steps To Avoid Misleading or Deceptive Conduct

Compliance isn’t a one-off task. It’s a combination of culture, process, checks and documentation. Here’s how to build that into your business.

1) Map Your Customer Touchpoints

List every channel where customers see your claims: website pages, product pages, checkout flows, emails, ads, social posts, printed collateral, packaging, in-store signage, and sales scripts. You can’t manage what you can’t see, so making an inventory is step one.

2) Review Your Messaging for the “Overall Impression”

Look at your content the way a typical customer would. Ask: what’s the dominant message? Are any key limitations hidden? Would someone reasonably take away an exaggerated benefit?

If you sell online, ensure your Website Terms and Conditions mirror the promises you make in your marketing. Your “legal fine print” shouldn’t contradict your ads-consistency across channels reduces risk.

3) Substantiate Every Claim

Keep records to back up statements (pricing comparisons, performance stats, test results, survey data, certifications). If you can’t substantiate it today, don’t say it today. Build a simple approvals checklist so marketing claims are verified before they go live.

4) Use Clear, Prominent Qualifications

If a claim depends on conditions, state them clearly, close to the headline claim, and in plain English. Avoid hiding critical information in dense paragraphs or at the bottom of the page.

For example, if “free shipping” excludes remote postcodes, say so where you mention “free shipping,” not only on a separate policy page. If a discount only applies to first purchases, say “first order only” on the offer tile itself.

5) Keep Prices and Offers Accurate

When showing strike-through prices, RRP or sale countdowns, ensure they’re genuine, current and applied consistently. Align your practices with Australian pricing laws for advertised offers to avoid enforcement action or complaints.

6) Align Your Email, SMS and Telemarketing

Your marketing list practices affect customer trust. Be clear about what people are signing up for, obtain consent, and make opting out easy. For messaging content, ensure claims are consistent with your site and supportable. It’s worth brushing up on email marketing laws so your outreach is transparent and compliant.

7) Train Your Team (Sales, Support and Marketing)

Mistakes often happen in real-time conversations. Provide simple scripts and FAQs so staff don’t over-promise under pressure. Have a clear escalation process for tricky questions rather than guessing a feature or timeframe.

If you’re hiring or growing quickly, put the fundamentals into an Employment Contract and a short training pack that covers ACL basics, your claims approvals process, and where to find current offers and product limitations.

8) Keep Records and Version Control

Save dated copies of campaign assets, website versions, and the evidence supporting claims. If a complaint arises months later, you’ll want to show what was live at the time and why you believed it was accurate and fair.

9) Build a Fast Fix Culture

If you spot a risk-like a claim that could be read the wrong way-update it quickly. Speedy corrections can reduce harm and show regulators you take compliance seriously.

Do Your Contracts and Policies Support ACL Compliance?

Your customer-facing legal documents should reinforce, not undermine, what you say in your marketing. They also help you communicate rights and limitations clearly.

• Website Terms and Conditions: Set the rules for using your site, how products or services are offered, and key limits on liability and user conduct. Your Website Terms and Conditions should align with your actual sales process and claims.
• Terms of Trade or Sale: Spell out order processes, pricing, payment timing, delivery, refunds, and warranties in one place. Clear Terms of Trade reduce ambiguity that can lead to disputes or misleading impressions.
• Warranties Against Defects: If you offer any additional warranties, you must present them in a compliant format that doesn’t downplay the customer’s automatic ACL rights. A tailored Warranties Against Defects Policy helps you meet the mandatory wording requirements.
• Privacy Policy: If you collect personal information for marketing or customer accounts, your Privacy Policy should clearly explain what you collect and how you use it. Hidden data practices can create a misleading impression about how “free” offers or sign-ups work.
• Disclaimers: Disclaimers can clarify limits, but they won’t save you from misleading conduct if the headline claim is false or the qualifier is too obscure. Use disclaimers to enhance clarity-not as a band-aid for a risky headline.

If you operate a marketplace, subscription service or SaaS product, ensure your platform terms align with how you actually deliver services and bill customers. If in doubt, consider a quick review with a consumer law consultation so gaps are closed before a campaign goes live.

Handling Complaints and Reviews the Right Way

Issues will occur from time to time. The way you respond can either defuse the problem or escalate it.

Respond Promptly and Transparently

Listen, acknowledge, and provide clear next steps. If your ad or page was confusing, say so, and fix it. If a delay or stock issue arises, avoid promising timelines you can’t meet-give realistic updates and alternatives.

Offer Remedies That Reflect ACL Rights

Customers may be entitled to a repair, replacement, or refund depending on the problem. Your internal guidance should help frontline staff apply ACL remedies appropriately, rather than defaulting to a one-size-fits-all script that could mislead customers about their rights.

Manage Online Reviews Fairly

Encourage honest reviews, but don’t post fakes or selectively remove genuine criticism. If you suspect review manipulation against your business, learn the appropriate steps for handling fake reviews and gather evidence before engaging the platform or taking legal action.

Close the Loop Internally

Every complaint is a chance to improve. Feed the key lessons back into your copy, offers, contracts, and staff training so the same confusion doesn’t reoccur.

Examples: Turning Risky Claims Into Clear, Compliant Messaging

Sometimes a few words make all the difference. Here are examples of how to reframe common risky claims.

• “Risk-free trial” → “14-day trial, cancel anytime before day 14 to avoid charges.” (Then make cancellation easy.)
• “Was $120, now $60” → Confirm the “was” price was genuine for a reasonable time and not inflated; otherwise, frame as “$60 introductory price for March” with clear dates.
• “Unlimited data” → “Unlimited data with 100GB high-speed; speeds reduced thereafter.” (And show the qualifier near the claim.)
• “Eco-friendly packaging” → Specify “100% recyclable cardboard mailer; soft-plastic inner bag recyclable via store drop-off.” Provide substantiation and avoid vague terms.
• “Cheapest in Australia” → Either substantiate across relevant competitors and timeframes, or switch to a precise, provable claim (e.g., “We’ll beat any identical quote by 5%-terms apply”).

Beyond Claims: Related ACL Obligations To Keep In View

Avoiding misleading conduct sits alongside other consumer law requirements that shape your customer experience and communications. A few to keep in mind:

• Specific representations about goods and services: Section 29 of the ACL prohibits false or misleading representations about price, quality, sponsorship, and more. It’s worth revisiting how section 29 works when shaping detailed product claims.
• Warranties and guarantees: You can offer extra benefits, but you can’t exclude the ACL’s automatic consumer guarantees. If you describe warranties in your marketing, ensure consistency with your warranty documentation.
• Advertising formats: Countdown timers, limited-time offers, “Only 3 left!” stock counters, and pre-checked boxes all attract scrutiny. Make sure they reflect reality and don’t nudge customers through misleading signals.
• Order flows and subscriptions: Be clear about recurring charges, renewal dates and cancellation steps. Reflect the position accurately in your website terms and checkout interface.

When Should You Get Legal Help?

If you’re planning a large campaign, launching a new product line, using sensitive claims (health, environmental, financial), or adopting complex pricing tactics (bundles, RRP comparisons, rebates), it’s smart to get an experienced pair of eyes across your collateral.

A brief review can flag red-flag wording, tighten disclaimers, and align your policies with your actual practices. You might also consider a short training session for your team on the essentials of misleading conduct and customer remedies under the ACL.

If you need a quick sense-check or tailored terms, a targeted ACL consultation package or updates to your Terms of Trade and warranty wording can save time and reduce risk.

Key Takeaways

• Misleading or deceptive conduct isn’t limited to outright lies-the law looks at the overall impression your marketing and sales create.
• Common traps include unsubstantiated “best” or “was/now” claims, vague environmental statements, hidden qualifications, and confusing subscription terms.
• Build compliance into your workflow: map your touchpoints, verify claims, use clear and prominent qualifiers, and keep evidence on file.
• Align your public messaging with your legal documents-well-drafted Website Terms and Conditions, Terms of Trade and a compliant Warranties Against Defects Policy support ACL compliance.
• Train staff on what they can and can’t say, and handle complaints transparently with remedies that reflect ACL rights.
• For higher-risk campaigns or complex pricing, a short consumer law review can help you catch issues before they go live.

If you’d like a consultation on avoiding misleading or deceptive conduct in your marketing and sales, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.