The Commerce Commission has announced its updated enforcement priorities for the upcoming year.    

Specific priorities

The Commission has announced seven specific enforcement priorities for the upcoming year: 

• Bid-rigging cartels: Particularly in relation to the procurement of public services and public infrastructure contracts. 
• Non-compete agreements: Whether in arrangements between competitors or other types of anti-competitive arrangements. 
• Illegal online sales conduct: Fake reviews, misleading scarcity claims, drip pricing and subscription traps.
• The grocery sector. 
• Telecommunications sector: Particularly misleading marketing, sales or billing practices of telecommunication providers.   
• Motor vehicle finance: The Commission will prioritise matters where vulnerable consumers are impacted.
• Unconscionable conduct: The Commission is seeking opportunities to test this relatively new prohibition under the Fair Trading Act before the courts. 

These priorities were selected based on common issues for businesses and consumers, the Commission’s market intelligence and complaints it has received over the past year.

The Commission's list is not exhaustive, and it will monitor other areas as necessary. For example, while the Commission has not identified greenwashing as a specific enforcement priority, it has said it is prepared to take enforcement action if businesses who engage in greenwashing breach the Fair Trading Act and it is working with other agencies around greenwashing issues. 

Enduring priorities

In addition to its specific priorities, the Commission has also updated its enduring priorities. The Commission’s enduring priorities are: 

• Cartel conduct
• Anti-competitive conduct
• Product safety
• Vulnerable consumers
• Actions that support the Commission’s market and economic regulation functions

These priorities are key areas that pose significant harm to New Zealand consumers, businesses and markets, alongside areas which are core to the Commission’s regulatory role. 

Key takeways from the Commission's updated priorites?

We expect to see more enforcement action from the Commission over the coming year, including under the Commerce Act. The Commission has advised that it intends to be a more active enforcer and has budgeted to overspend its litigation fund by $2-3 million. Over the past year, the Commission has demonstrated its commitment to expend its litigation fund by filing proceedings in relation to alleged breaches of both competition and consumer laws. Notable proceedings include the criminal cartel prosecution against two construction companies and its directors (see our previous alert), proceedings against Winstone Wallboards for alleged misuse of market power for its use of rebate arrangements (see our previous alert), proceedings against Foodstuffs for lodging anti-competitive land covenants (which resulted in a $3.25 million penalty) and the prosecution of One NZ for allegedly misleading consumers about its mobile coverage. 

The Commission’s update of its enforcement priorities is a good opportunity for businesses to reflect on their compliance with relevant competition and consumer laws and identify any practices that may pose compliance risks, particularly those related to the updated priorities. Responding to Commerce Commission investigations is resource-intensive and costly, and we recommend businesses take proactive steps to ensure compliance. 

What’s next? 

The Commission intends to take enforcement action based on its updated enforcement priorities and plans to review the priorities in early 2025 to consider whether any updates are necessary for 2025/2026. 

In addition, the Ministry of Business, Innovation and Employment has announced a review of the Commerce Act (see discussion paper here). An alert on this will follow. 

We advise on the full suite of competition and consumer law issues and assist businesses in various industries to ensure compliance, respond to regulatory inquiries, investigations and enforcement action. If you have any questions about the Commission’s enforcement priorities and how they may impact your business please contact one of our competition and consumer law experts.