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The TechnoCat and other tales

The TechnoCat and other tales

Marketing Brief

Well, by the time you read this the holidays will be almost a month behind us. I hope you enjoyed them and I certainly hope you have your strength back, perhaps in the context of the famous curse “may you live in interesting times”. Alas, Christmas is over for another 11 months. But there were some great presents, weren’t there? I decided to upgrade my cat Harriet’s IT skills with a virtual mouse using the Games for Cats app on my iPad. She wasn’t keen on the laser (at time of writing I haven’t started using my iPhone to direct it) and the butterfly left her cold, But woohoo: that mouse. After her first half-hour effort she fell asleep exhausted, but the next morning demanded that I turn it on again and she now watches it whenever she can. What have I unleashed? Will she start texting me "Dinner NOW" the next time she wants to eat? On the legal front, consumer law reform is likely to strike again, with the Consumer Law Reform Bill expected to be rolled over into the new term of Parliament, together with reform to consumer credit law. Altogether, there are a number of provisions which will affect traders at all levels of the supply chain. The first shouldn’t be a problem if you are carefully providing safe merchandise. Proposals include an obligation to report unsafe products, and compulsory product recalls on safety grounds where the manufacturer or supplier has not carried out a voluntary recall. Product safety officers have very broad powers to issue a suspension of supply notice prohibiting the sale of a product pending a compulsory recall. But there is also a new proposed prohibition on unsubstantiated representations about goods or services where a person making them does not have reasonable grounds for the representation irrespective of whether or not the representation is in fact false or misleading. The Commerce Commission (and only the commission) can commence proceedings, applying for an order or an injunction to stop the goods being sold. Although there are a number of factors which a court would take into account in deciding whether you actually did have reasonable grounds for the representation, that is to some extent after the fact: it is for the court, not the commission, to make that decision on the facts of each case, and it’ll cost you a lot to get that far. So it is not at all clear (for example) how much homework a retailer, distributor or importer would have to do on each product (including branded products) before they can be said to have made representations based on reasonable grounds. It’s pretty scary as it is right now, and I expect we will have to make some careful submissions when the Bill goes out to Select Committee. That’s not all, folks. We also have in the pipeline an amendment to the Commerce Act which will criminalise cartel behaviour, in line with international best practice. It would mean that if you are personally involved in price-fixing, market allocation or similar activities, then instead of facing a $500,000 maximum penalty, if the bill goes through Parliament as drafted, you would face up to seven years in gaol. Happy days. The provisions are quite complex so we will wait and see, but some serious upskilling is likely necessary for all of you involved in business. Sounds like a fun time ahead. Rae Nield is a solicitor specializing in marketing law. This article is intended for general information, and should not be relied on as specific legal advice. You should consult a lawyer for advice relating to your own specific legal problems. Rae Nield can be contacted at raenield@marketinglaw.co.nz.


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