Action taken against leading florist

In Australian Competition and Consumer Commission v Bloomex Pty Ltd [2024] FCA 243 (15 March 2024), the Australian Competition and Consumer Commission (ACCC) commenced proceedings against Bloomex, one of Australia’s largest florists, for contraventions of ss18(1), 29(1)(a), (g) and (i) and 48(1) of the Australian Consumer Law (ACL).

The ACCC alleged, and Bloomex admitted, that material published on Bloomex’s website about advertised discounts, customer ratings and prices was false or misleading.

In addition to false representations for all products of discounts and customer star ratings, the website contained misleading information as to the total price of the products.

A surcharge was only revealed at checkout, which Bloomex agreed meant that prior representations were false and misleading and did not specify the single price for the product, contrary to s48(1) of the ACL.

The ACCC sought declaratory and injunctive relief, with which Bloomex agreed, and which Anderson J was satisfied should be ordered (at [92]-[97]).

The only issue in dispute was the amount of the civil penalty to be ordered. ACCC sought a penalty of $1.5 million submitting that as one of the largest florists in Australia, significant penalties must be imposed to achieve specific and general deterrence (at [115]), particularly as the representations persisted in respect of nearly all products on the website for a period of four years, during which time Bloomex generated revenue of $38m (at [117]).


Bloomex contended a penalty of $350,000 would be appropriate (at [133]-[138]) including on the bases that Bloomex had suffered a net loss of $1.8 million in 2022 and a high penalty might cause Bloomex to cease operating in Australia (at [169]), and that the impact on consumers was minimal because flowers are a discretionary spend.

Anderson J set out the principles applicable in respect of civil penalties (at [100]-[114]) and identified that it was proper to assess the penalty by reference to the course of conduct principle and the totality principle [147].

His Honour found that Bloomex’s wrongdoing in respect of the discount and star rating representations was serious in nature (at [148]). He considered the total product price representations were of lesser seriousness, including because if the surcharge had been incorporated into an express delivery fee it would not have amounted to a contravention of s48 (at [149]).

His Honour considered various factors (at [150]-[161]), including Bloomex’s size and financial position (at [162]-[169]), noting that the fact a penalty may cause a company to cease operating does not prevent the Court from imposing a penalty that achieves the objective of general deterrence (at [169]). Anderson J concluded that a penalty of $1 million was sufficiently high to deter repetition specifically and generally (at [170]).

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