Australian Competition and Consumer Commission v Burden [2017] FCA 399

Australian Competition and Consumer Commission v Burden [2017] FCA 399

Elusion Australia Limited, by website representations misleading as to the absence of harmful chemicals in e-cigarettes, contravened ss 18, 29(1)(a), and 33 of the ACL; Mr Burden, as director with knowledge and responsibility, was knowingly concerned in the contraventions. The admitted conduct, seriousness, public health context, and respondents' cooperation warranted declarations, injunctions, compliance, publication orders, and pecuniary penalties in amounts agreed, which were appropriate and within range to achieve deterrence.

Jurisdiction
Australia
Judgment Date
02 May 2017
Procedural Posture
Civil / Judgment and Final Orders After Admitted Contraventions and Consent Orders Sought
Outcome
Declarations made; injunctions granted; pecuniary penalties imposed; compliance, publication and costs orders granted as per consent
Legal Topics
['misleading or Deceptive Conduct' 'false or Misleading Representations' 'pecuniary Penalties' 'jurisdiction' 'injunctions' 'declarations' 'corrective Orders' 'compliance Orders' 'publication Orders']
['consumer Law' 'trade Practices' 'commercial Law'] ['misleading or Deceptive Conduct' 'false or Misleading Representations' 'pecuniary Penalties' 'jurisdiction' 'injunctions' 'declarations' 'corrective Orders' 'compliance Orders' 'publication Orders']

Case Brief

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Procedural Posture

Civil / Judgment and Final Orders After Admitted Contraventions and Consent Orders Sought

Legal Issues

  1. 1 ['Whether respondents engaged in misleading or deceptive conduct in contravention of s 18 of the ACL' 'Whether false or misleading representations were made as to the composition of goods in contravention of s 29(1)(a) of the ACL' 'Whether conduct was liable to mislead as to the nature or characteristics of goods, contravening s 33 of the ACL' 'Appropriateness of pecuniary penalties and consent orders']

Ratio Decidendi

Elusion Australia Limited, by website representations misleading as to the absence of harmful chemicals in e-cigarettes, contravened ss 18, 29(1)(a), and 33 of the ACL; Mr Burden, as director with knowledge and responsibility, was knowingly concerned in the contraventions. The admitted conduct, seriousness, public health context, and respondents' cooperation warranted declarations, injunctions, compliance, publication orders, and pecuniary penalties in amounts agreed, which were appropriate and within range to achieve deterrence.

Court Disposition

Declarations made; injunctions granted; pecuniary penalties imposed; compliance, publication and costs orders granted as per consent

Orders

  • ['Declarations of contraventions by Elusion and Mr Burden (ACL ss 18, 29(1)(a), 33)' 'Injunction restraining Elusion (3 years) from misleading representations as specified' 'Injunction restraining Mr Burden (3 years) from involvement in misleading representations as specified' 'Order for Elusion to remove infringing...