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Is Your Advertising Legal? What Every Australian Business Needs to Know About Misleading Conduct
- Nikolina Milošević
- 7 hours ago
- 5 min read
Every business that advertises, sells, or promotes anything in Australia is bound by section 18 of the Australian Consumer Law, whether you’ve read it or not, and whether you meant to break it or not. Most businesses that fall foul of it never intended to mislead anyone. That is exactly why this is worth checking properly rather than assuming your marketing is fine because it “feels honest.” If you’d rather have someone check it for you, you can book a Strategy & Advice Consult at any point while you’re reading.
The rule itself
Section 18 of the Australian Consumer Law says a person must not, in trade or commerce, engage in conduct that is misleading or deceptive, or is likely to mislead or deceive. Section 29 goes further and lists specific false representations that are treated as automatically against the law, including false claims about the standard, quality, or benefits of goods or services, false claims about price, and false claims that goods or services have sponsorship, approval, or affiliation they don’t actually have.
The two provisions work together. Section 18 catches almost anything. Section 29 catches specific categories and carries civil penalties on top.
You don’t need to intend to mislead
This is the part that catches business owners out. Section 18 doesn’t require intent. It doesn’t matter if you genuinely believed the claim was true, or if you were just being enthusiastic about your own product. If the conduct, taken as a whole, creates a false or inaccurate impression in the mind of a reasonable consumer, it is likely to be a breach. Ignorance of the rule and good faith are generally not accepted as defences.
The “dominant impression” test
Courts generally don’t look at whether a single sentence was technically true in isolation. They tend to look at the overall impression the advertisement creates. A statement can be literally accurate and still be considered misleading if the way it’s presented, the context, the fine print, or what’s left unsaid creates a false overall picture.
A few examples that come up constantly in small business advertising, and that are worth checking your own marketing against.
“Up to” claims.
“Save up to 50%” is unlikely to be compliant unless a genuinely meaningful proportion of your range is actually discounted by that much. If one item out of two hundred is 50% off and everything else is 10% off, the claim is likely to be considered misleading, even though technically one item really is 50% off.
Was/now pricing.
If you show a “was” price, it generally needs to be a price you genuinely sold at for a reasonable period beforehand, not a price you invented the day before a sale to make the discount look bigger. We’ve covered this in more detail, including how to price transparently under the ACL, in Pricing Practices and the Australian Consumer Law.
Doctored or unrepresentative imagery.
A photo can mislead just as easily as a sentence. If an image gives a false impression of size, quality, results, or condition, that could itself amount to a breach even if no words were used at all.
Omissions.
Leaving out a material fact can be just as misleading as stating something false. If a “free” offer has conditions that materially change what the consumer is actually getting, failing to disclose those conditions clearly may itself be considered a breach.
Comparative claims.
Saying you’re “cheaper than” or “better than” a named competitor requires the comparison to be accurate, current, and made on a fair basis. A comparison that uses an outdated competitor price, or compares two products that aren’t actually equivalent, is a common way businesses can unintentionally fall foul of the ACL while trying to look competitive.
The “was $199, now $99” scenario.
Say a Perth homewares business runs a campaign: “Was $199, Now $99 — Save 50%.” If the item was only ever listed at $199 for two days immediately before the sale started, after being sold at $140 for the prior six months, the “was” price is unlikely to reflect a genuine prior selling price. The dominant impression created (a genuine half-price sale from an established price point) is likely to be considered false, even though $199 might have technically appeared on a price tag at some point. This is the kind of conduct the ACCC has taken enforcement action over in the retail sector before.
Why this matters more than it used to
The penalties for breaching the ACL increased significantly in 2026. Under the Treasury Laws Amendment (Doubling Penalties for ACCC Enforcement) Act 2026, which applies to conduct from 28 March 2026 onward, the maximum penalty for a corporation is now the greater of 100 million dollars, three times the value of the benefit obtained from the conduct, or 30 percent of the company’s adjusted turnover during the breach period. Individuals face penalties of up to 2.5 million dollars. You can read more about how the ACCC approaches fines and penalties generally.
Those figures are aimed at large companies, but the ACCC’s enforcement activity in recent years has increasingly targeted small and medium businesses, particularly around online advertising, influencer marketing, and reviews. Scale doesn’t exempt a business from the rule. It just changes how big the number could be if it goes wrong.
Who can act on it
It isn’t only the ACCC. A competitor may bring a claim if your advertising damages them. A consumer may bring a claim, or complain to a state fair trading body, or leave the kind of public review that does more reputational damage than any fine. And if you’re bound by an industry code, such as the AANA Code of Ethics for advertising, or an AHPRA advertising standard if you’re a regulated health service, you can potentially be dealt with under that code as well as under the ACL. Getting your website itself compliant is a related first step, which we cover in Is Your Website Legally Compliant?
A quick self-check
Before anything goes out, whether it’s a website claim, an ad, a social post, or packaging copy, run it through these questions.
Is every specific claim (price, quality, results, origin, endorsement, comparison) something you can substantiate with evidence right now, not something you assume is probably true?
What is the overall impression a reasonable person would likely take away, not just what the individual words say?
Is there anything you’re leaving out that could change how a reasonable person reads the claim if they knew it?
If a “was” price, a discount, or a comparison claim is involved, can you point to the exact dates and evidence that support it?
This blog is intended for general information purposes only and does not constitute legal advice. The content is based on Australian law and may not be current at the time you read it. Legal requirements may vary depending on your circumstances. Always seek independent legal advice tailored to your specific situation before acting on any information provided.
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