The test is the impression, not the technique
The ACCC’s guidance looks at the impression a business creates. Any statement that creates a false impression about goods or services can break the law, and in some circumstances leaving out an important detail can be misleading too. Fine print must not contradict an advertisement’s overall message.
Not every exaggeration counts. The ACCC says wildly exaggerated, vague claims that no one could take seriously, which it calls puffery, are generally not considered misleading; its example is a restaurant’s “best steaks on earth”. A claim that a product has a particular quality or benefit is different: the business must be able to prove it, and a claim about the future needs reasonable grounds at the time it is made.
That matters for neuromarketing in two ways. A finding about what catches attention does not make a claim built on it lawful. And a claim about the research itself, that a product or campaign is backed by brain science, is a claim the business may have to prove.
Three techniques the regulator has acted on
Scarcity
Penalty ordered, 2020An online ticket resale platform was ordered by the Federal Court to pay a $7 million penalty. The Court had found in 2019 that it made false or misleading representations, including that certain tickets were scarce, that it was the “official” seller, and about prices, by leaving significant fees until late in the booking.
The ACCC’s then chair said the business had created a false sense of urgency by suggesting tickets were scarce. ACCC media release on the penalty.
Urgency and the anchor price
Penalties ordered, 2026An online bedding supplier admitted showing every one of its 74 products online beside a higher, struck-through price or a percentage discount. Of those products, 58 had never been offered at the higher price, or without the discount, and the other 16 almost never.
It also admitted suggesting that sale prices were available for a limited time, using a countdown timer that reset during a sale and phrases such as “Ending Soon”, while the same or similar discounts continued. The Court found the conduct came from a deliberate marketing strategy, and ordered penalties totalling $15 million across two companies in the group, as well as corrective notices and a compliance program.
The ACCC said it was concerned that the resetting timer and the “ending soon” claims created a false sense of urgency, which may have pressured people into rushed decisions. ACCC media release on the penalties.
Social proof
ACCC guidanceReviews are persuasion by other people’s experience, and the ACCC says it is against the law for a business to create fake or misleading reviews, or to arrange for others to. Its guidance on online reviews sets out the ways reviews can mislead, including undisclosed incentives and suppressing negative reviews.
Dark patterns, and where enforcement is heading
In its advice on online games, the ACCC describes manipulative advertising techniques designed to get people to make a purchase, also known as “dark patterns”. It suggests not hurrying a purchase because of a countdown timer, since sales often continue or are repeated shortly after.
In a recent speech on enforcement, the ACCC said that some design choices built into online business models go well past selling:
“social proofing, upselling, nudge tools and other dark patterns deliberately integrated into online and digital business models go well beyond sales persuasion and are fundamentally manipulative.”
ACCC, “ACCC enforcement: Recent developments and future directions”
The same speech said investigations may increasingly look at the systems, incentives and governance behind a business’s practices, rather than a single representation in isolation.
A new rule from 1 July 2027. The speech also lists “the introduction of the unfair trading practices prohibition” among recent reforms that will give the ACCC additional tools. Parliament passed the Competition and Consumer Amendment (Unfair Trading Practices) Act 2026; the prohibition starts on 1 July 2027. Its new section 28B of the Australian Consumer Law lists examples of conduct that may be an unfair trading practice. One is creating an environment, including through design in a digital interface, that puts a consumer under unreasonable pressure over a decision. Check the Act on the Federal Register of Legislation and the ACCC’s website before relying on any summary of it, including this one.
Questions the cases suggest
- Is the scarcity real: is the stock, the seat or the offer actually limited?
- Does the deadline mean what it says, or does the offer continue after the timer ends?
- Was the higher “was” price genuinely charged?
- Are the reviews and ratings genuine, with any incentive disclosed?
- Can the business prove each claim about a product’s quality or benefit, including any claim that it is backed by research?
The last question leads to reading a neuromarketing claim. For the science behind attention and choice, see eye tracking and attention.