TLDR (too long didn’t read):
In Australia, both the marketing company and the client company can be held legally responsible for false or misleading advertising under the Australian Consumer Law (ACL).
Advertiser responsibility under Australian Consumer Law (ACL)
In Australia, both the marketing company and the client company can be held legally responsible for false or misleading advertising under the ACL, enforced by the Australian Competition and Consumer Commission (ACCC). Liability depends on each party's role in the creation, approval, and dissemination of the misleading content. If a marketing company is involved in drafting or approving advertisements that contain deceptive claims—such as environmental or performance claims—they may be held accountable, particularly if they knew or ought to have known the claims were misleading.
On the other hand, client companies are also liable if the misleading information originates from them, or if they approve or fail to correct misleading content created by a third party. The ACCC has made it clear that businesses cannot outsource their legal responsibilities under the ACL. This shared liability encourages both parties to ensure all advertising is truthful, accurate, and substantiated. In recent enforcement actions, the ACCC has pursued both advertisers and their clients, emphasizing the importance of diligence and compliance throughout the marketing process. Ultimately, all parties involved in promoting a product or service must take reasonable steps to avoid making or endorsing misleading representations.
ACCC cases
The Australian Competition and Consumer Commission (ACCC) has investigated several recent instances of greenwashing, where businesses made misleading environmental claims.
1. Clorox (Glad Products): In December 2023, Clorox Australia was fined $8.25 million for misleading claims that certain Glad products were made from "ocean plastic." The ACCC found these representations deceptive, as the plastic used was not sourced from the ocean as implied. ACCC+1ACCC+1
2. MOO Premium Foods: In October 2023, the ACCC accepted a court-enforceable undertaking from MOO Premium Foods after investigating its "100% ocean plastic" claims on yoghurt packaging. The company agreed to remove these representations and implement a compliance program.
3. EnergyAustralia: In May 2025, EnergyAustralia faced a landmark legal case over its "Go Neutral" product, which claimed to offer carbon-neutral electricity and gas through carbon offsets. Advocacy group Parents for Climate alleged these claims were misleading, as the offsets did not effectively neutralize emissions.
Implications for Marketing Agencies and Companies:
These cases underscore the importance for marketing agencies and companies to ensure that all advertising content they create or disseminate is truthful and not misleading. Even if not directly prosecuted, agencies can be implicated in enforcement actions if they contribute to the dissemination of false or misleading information. Agencies should implement robust compliance programs and conduct thorough reviews of advertising materials to mitigate the risk of liability under the ACL.
While direct prosecutions of marketing agencies are rare, the ACCC's enforcement actions highlight the shared responsibility between businesses and their marketing partners to uphold truthful advertising practices.
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