Unfair Trading Practices Bill 2026: What it means for marketing and advertising

A proposed unfair trading practices law could reshape how marketing and digital experiences are assessed, with a broad and currently unclear scope creating uncertainty for businesses. While aimed at preventing manipulation, the lack of clear thresholds and definitions risks capturing everyday marketing practices already governed by existing laws.

What Marketers Need to Know 

• A new “unfair trading practices” prohibition is being proposed, but its scope is currently broad and uncertain
• The law aims to target conduct that manipulates consumers or distorts decision making
• There is no clear gap in existing laws, meaning this could overlap with current consumer and privacy regulations
• Everyday marketing tactics could be unintentionally captured, especially without a clear threshold for what counts as “detriment”
• Common tools like countdown timers and low stock messages are not inherently problematic, but could create risk if not clearly addressed in guidance
• The concept of “dark patterns” is central but not well defined, creating uncertainty between legitimate persuasion and harmful manipulation
• Marketers should be aware that this could impact UX design, conversion strategies, and campaign tactics
  
  

ADMA has made a submission to Treasury on the Exposure Draft of the Competition and Consumer Amendment (Unfair Trading Practices) Bill 2026.

An Exposure Draft is a draft version of legislation released for public consultation before it is introduced to Parliament. It gives industry and stakeholders the opportunity to provide feedback on how the proposed law would operate in practice.

The Bill proposes introducing a new general prohibition on “unfair trading practices” into Australian consumer law. If passed, this would sit alongside existing obligations under the Australian Consumer Law and related conduct provisions.

We strongly support robust consumer protections. Trust is the foundation of effective marketing, and our members understand that good regulation plays an important role in maintaining that trust.

However, we do not support introducing a broad new general prohibition on “unfair trading practices” at this time. Below is a summary of our position and what it could mean for your business.

The big picture 

The Bill proposes a new general prohibition that would make it unlawful for a business to:

• Unreasonably manipulate a consumer, or
• Unreasonably distort the environment in which a consumer makes a decision,

where that conduct causes, or is likely to cause, detriment.

In practical terms, this is designed to capture conduct that influences how a consumer makes a purchasing decision in a way that is considered unfair.

On face value, this sounds sensible. No one supports manipulative or harmful conduct. Our concern is that the prohibition is very broad, and the purpose and boundaries are not clearly defined. That creates uncertainty for businesses that are already operating within a complex consumer law and privacy framework.

Importantly, no clear gap in existing law has been identified. Many of the harms discussed in earlier consultation processes are already addressed under:

• The Australian Consumer Law
• Misleading and deceptive conduct provisions
• Unconscionable conduct rules
• Ongoing Privacy Act reforms

Adding another broad, overlapping prohibition risks duplication, confusion and higher compliance costs, without clear consumer benefit.

Our primary recommendation: remove the general prohibition from the Bill at this time.

If the prohibition goes ahead, here’s what needs fixing 

While we recommend removing the general prohibition, we have also provided constructive suggestions in case the Government proceeds.

1. Raise the detriment threshold

The Bill currently captures conduct that causes “detriment”, financial or otherwise.

“Detriment” is not limited to financial loss. It could potentially include non-financial impacts such as inconvenience, delay or emotional response.

There is no qualifier such as “material” or “significant”.

That is a problem. Without a clear threshold, the law could unintentionally capture everyday marketing practices that cause nothing more than:

• Mild annoyance
• Buyer’s remorse
• Temporary inconvenience

Given the very significant penalties available under the legislation, this is not a trivial issue.

Marketing and advertising necessarily involve persuasion. Consumers sometimes change their minds. That does not automatically mean the conduct was unfair or harmful.

Our recommendation: amend the second limb so that only “significant” detriment is captured.

Minor or trivial impacts should not trigger such serious consequences.

 2. Be careful with examples like countdown timers and low stock notifications  

The Explanatory Materials – the official document that accompanies a Bill and explains how it is intended to operate – reference examples such as:

• Countdown timers
• Low stock notifications
• “Confirm shaming”

These are described as tactics that may create urgency or provoke impulsive action.

Here’s the issue.

Countdown timers and low stock notifications are widely used, and when accurate, they are helpful to consumers. People want to know:

• When a sale ends
• Whether stock is genuinely limited

These tools are not inherently unfair. They only become problematic if they create a false impression, for example by misrepresenting stock levels or sale deadlines.

Similarly, so-called “confirm shaming” – where a consumer is nudged toward one option through emotionally framed messaging – may not always represent best practice, but it often falls far short of conduct that warrants prohibition and heavy penalties. Something more should be required, such as misleading or deceptive messaging.

Without clarification, businesses face uncertainty about whether standard, legitimate practices could be challenged.

Our recommendation: clarify or remove these examples from the Explanatory Materials unless they are clearly linked to misleading or deceptive conduct.

3. Define what “dark patterns” actually means

The Bill indicates that the new prohibition is intended to address “dark patterns”.

“Dark patterns” is a broad term used internationally to describe online design practices that steer users toward decisions in ways that may be misleading, coercive or difficult to navigate – for example, making it harder to cancel a subscription than to sign up.

The problem is that there is no clear definition of what that term captures in practice.

There is a real difference between:

• Skilled, persuasive marketing, and
• Manipulative conduct that unfairly harms consumers.

Drawing that line clearly is critical.

In the EU, similar consumer protection laws are supported by detailed guidance. Businesses can see how regulators interpret the rules and apply them in practice.

In Australia, we do not yet have that level of clarity.

Our recommendation: work with industry to develop detailed guidance on what constitutes a dark pattern, and how it differs from legitimate persuasive marketing.

Without this, the Bill introduces significant uncertainty and risk.

Why this matters for members 

Regulatory clarity is not just a legal issue. It affects:

• Product and website design
• Marketing strategy
• Conversion optimisation
• Investment decisions
• Compliance costs

Overlapping and duplicative regulation can reduce productivity and create confusion across different regulatory regimes.

ADMA supports strong consumer protection. But good regulation should be:

• Clear
• Targeted
• Proportionate
• Integrated with existing frameworks

At the moment, we are not convinced the proposed general prohibition meets that test.

 Where ADMA stands  

In summary:

• We support strong consumer law protections.
• We do not support introducing the general unfair trading practices prohibition at this time.
• If it proceeds, it must be drafted narrowly, with a “significant detriment” threshold.
• The examples of countdown timers, low stock notifications and confirm shaming should be clarified or removed.
• Government should work closely with industry to define and explain what is meant by “dark patterns”.

We remain committed to working constructively with Government to ensure any new framework protects consumers while providing certainty and fairness for businesses.

As always, we will keep members updated as this progresses.

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