ACCC takes on the RAT race as prices soar in COVID-19 outbreak
RATs under siege
In early January 2022, the Australian Competition and Consumer Commission (ACCC) commenced its industry wide investigation of both suppliers and retailers in relation to the pricing of rapid antigen tests as demands for the tests far exceeded available stock within weeks of the of the COVID-19 Omicron outbreak in December 2021.
The competition watchdog is contacting suppliers and retailers across all industries which are selling rapid antigen tests and requiring retailers to provide information about pricing of the tests and to substantiate any claims they make to consumers about the reason for higher prices.
Update from the ACCC
On 17 January 2022, the ACCC reported on its initial findings following a raft of information demands sent to suppliers and retailers.
The ACCC has reported significant concerns about the retail price of rapid antigen tests with findings that tests often cost between $20 to $30 per test and sometimes over $70 per test through smaller retailers, despite wholesale costs ranging between $3.95 and $11.45 per test.
In addition to excessive pricing, the ACCC has also reported concerns regarding:
no or incorrect receipts: retailers refusing to provide receipts or providing incorrect receipts to consumers upon purchase of rapid antigen tests;
online platforms: the highest prices have been identified on online platforms (one online advertisement featured rapid antigen tests for $1,000 per test); and
resale and repackaging: retailers separating individual tests from multi-pack rapid antigen tests and selling them as individual tests to consumers.
The ACCC is working closely with both the Therapeutic Goods Administration (TGA) and the Australian Federal Police (AFP) to investigate misconduct in relation to the sale of rapid antigen tests in Australia, including breaches of:
competition and consumer laws;
regulations regarding the supply, import, export, manufacturing and advertising of therapeutic goods; and
the most recent determination under the Biosecurity Act 2015 (Cth) on 8 January 2022, which prohibits a person from engaging in price gouging in relation to rapid antigen tests.
Have you received an information demand from the ACCC, TGA or AFP?
The ACCC has already contacted more than 40 test suppliers, major retailers and pharmacy chains seeking information about their costs, current pricing and stock availability.
The ACCC is continuing its industry wide investigations and is referring matters of interest to both the TGA and the AFP for further investigation.
If you or your business has received any communication from the ACCC, TGA or AFP in relation to the sale rapid antigen tests, it is imperative you obtain advice on an urgent basis.
If you require assistance or advice regarding communication you receive from a regulator or enforcement body, please do not hesitate to contact Suzanne Howari or Peter Wright.
The material in this article was correct at the time of publication and has been prepared for information purposes only. It should not be taken to be specific advice or be used in decision-making. All readers are advised to undertake their own research or to seek professional advice to keep abreast of any reforms and developments in the law. Brown Wright Stein Lawyers excludes all liability relating to relying on the information and ideas contained in this article.