What are the rules for energy marketing and advertising?
Energy businesses do not have free reign to market and advertise their services and products however they would like. Marketing and advertising is regulated by a range of rules, some that apply specifically to energy businesses, and some that apply generally to businesses in Australia.
Here we set out the main rules that apply to the marketing of energy, both by energy retailers and third-party energy marketers or sellers. We also identify who consumers may complain to, if they think these rules have been breached.
Marketing and advertising regulation
In all states and territories that have adopted the National Energy Customer Framework or ‘NECF’ (Queensland, NSW, ACT, South Australia and Tasmania), rules for marketing and advertising are set out in:
- The National Energy Retail Law. This determines how different offers to sell energy, ‘market offers’ and ‘standing offers’, are to be displayed, including on the retailer’s website;
- The National Energy Retail Rules. These set out in detail the ‘energy marketing rules’. More about these below;
- The AER Retail Pricing Information Guidelines. These guidelines set out how information relating to energy offers is to be published in ‘basic plan information documents’ and ‘detailed plan information documents’;
- The Competition and Consumer (Industry Code—Electricity Retail) Regulations 2019 (Code). This restricts the way in which discounts may be advertised;
- The Benefit Change Notice Guidelines. These contain rules around how ‘benefits’ in an energy offer (such as the expiry of a price discount), are to be communicated to consumers.
There are also some small state-based variations, such as those set out in the NSW Social Programs for Energy Code, which restricts the way in which grants, rebates and concessions may be referred to in marketing activities.
For more information about the marketing and advertising framework in NECF, see Energy marketing—what are your rights?
The rules in Victoria are primarily set out in the Energy Retail Code, clauses 63-70.
As Western Australian and the Northern Territory do not have energy retail competition there are fewer marketing and advertising restrictions in those jurisdictions.
The energy marketing rules
The ‘energy marketing rules’, as set out in clauses 62-70 of the National Energy Retail Rules, specify the most important restrictions on marketing to consumers in NECF jurisdictions. These include requirements to:
- Provide ‘disclosure’, the details of the energy offer must be explained to customers;
- Provide written copies of the contract and disclosure information;
- Create a ‘no contact’ list which means that the consumer is not annoyed by marketing offers for a set period of time;
- Not visit a house or deliver advertising material by mail where there are clear signs indicating that it would be unwelcome;
- Ensure that any third parties or ‘associates’ of energy retailers are following the rules.
General marketing and advertising laws
In addition to energy-sector specific rules, all energy businesses need to comply with a range of other marketing laws, regulations and rules that apply across industries. These include:
- Rules relating to ‘unsolicited consumer agreements’ in the Australian Consumer Law (ACL) (this applies Australia-wide). This includes time windows for ‘cold-calling’ customers and significant disclosure requirements (see sections 73-79);
- Prohibitions on ‘misleading or deceptive conduct’ or ‘making false or misleading representations’ in the ACL. Energy retailers have paid penalties under these sections for advertising their discounts in a misleading manner;
- Restrictions on telemarketing calls in the Do Not Call Register Act 2006;
- Prohibited calling times for the telemarketing sector as set out in the Telecommunications (Telemarketing and Research Calls) Industry Standard 2017;
- Restrictions on passing on personal information for direct marketing purposes under the Privacy Act 1988.
Who may consumers complain to?
First port of call for complaints, should be to the energy businesses themselves. All of them should have dispute resolution procedures in place (for retailers, this is a legal requirement).
If you are unsatisfied with your response, you could make a complaint to the energy ombudsman in your state or territory.
For breach of the ACL, complaints can be made to the Australian Competition & Consumer Commission (‘ACCC’). In addition, depending on the complaint, you may be able to complain to the fair trading agency in your state of territory such as NSW Fair Trading and the Queensland Office of Fair Trading.