ACCC UPDATE

Hi all,

Sorry for the delay to this update (which follows on from May 2021), I have been busy moving house from Gympie to Caloundra and a whole load of website work regarding this project.

As to the website work, Stage 1 (Sunshine Coast) of ROSES ONLY REVIEW has been published which covers major locations on the Sunshine Coast by way of 15 sub-domains (see the “Locations” tab)

The sub-domains contain keywords so as to get established in florist > location searches, in order to take the corporate cowboys on at their own game via “Sarah’s Flowers” and “Meg’s Flowers” as is demonstrated here HERE. More sub-domains will be added in due course.

Further to ROSES ONLY REVIEW a similar project at MEG'S FLOWERS REVIEW has commenced which will also be followed by the recently registered domain SarahsFlowers.Review.

Also, there is a further Petition at Getup, which provides a short summary of what is going on.

As can be seen by visiting ROSES ONLY REVIEW, in answer to this exposure, the Roses Only / FlowersCorp response has been in the form of some idiotic thuggery, and there is also evidence to support what appears to be a Police complaint pursuant to Queensland’s Unlawful Stalking legislation, an ironic attempt by those who contravene the law… to seek the protection of the law.

Regarding the ACCC, despite taking a “closer look” as per the representation of the Deputy General Manager of Enforcement Coordination & Strategy last May, I have subsequently received zero response, so it would appear that the inaction carried on over many years, continues.

As to the ACCC telephone discussion on 19 May 2021. The ACCC trotted out the standard assertion that, a consumer or business can always initiate their own legal proceedings….. Having personally experiencing this myself, and for over 10 years of litigation having to suffer from bullshitting barristers and sometimes judges not fond of litigants in person, I lost and suffered the consequences. So to me personally… that assertion is particularly outrageous, and I stated as such to the ACCC.

The ACCC appear to be well aware of consumers not receiving what was ordered or not receiving the product on the date agreed for delivery. It was explained to the ACCC how things have evolved from that basic model of order gathering into Meg’s Flowers and Sarah’s Flowers giving an overall impression to consumers that they had well over a hundred locations on the Sunshine Coast when this was not the case, and that concealed from consumers was the fact that all Megs & Sarahs orders along with orders from other brands such as 1300Flowers & Fast Flowers, were all being serviced by Roses Only factory (not open to the public) at Bells Creek on the Sunshine Coast, and that this example of a business model on the Sunshine Coast, was being applied all over Australia.

While there is no complaint to the ACCC about the quality of product and timeliness of delivery by this Megs & Sarahs business model, it was explained that if consumers were expressly made aware of how this business model operates, by the fact that flowers were not being purchased from a little florist shop say in Tewantin or Noosa, but a factory at Bells Creek, the millions of dollars in revenue gathered by these corporate cowboys may not be flowing, but instead be flowing to REAL little flower shops across Australia.

The ACCC requested information as to the difference price from this business model to what a REAL little florist charges. Pricing structures were gone into, but I am yet to understand how this is relevant.

What is relevant, which I pointed out to be the basis of my argument, is the wording in the legislation :
Section 18, Schedule 2, of the ACL - Misleading or deceptive conduct;             (1)  A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

And “misleading or deceptive” has been further clarified by the Courts to mean the “overall impression” given to a consumer.

Despite as it was pointed out to the ACCC that loss or damage is not a requirement to prove a section 18 contravention, the ACCC wanted to know what the damage was to Real Florists by what is going on. Well that’s simple, the damage is loss of revenue to Real Florists when a consumer goes with a Phony Florist.

The ACCC identified the words “deliver to” by Phony Florists and that it is a fact that they do deliver to a particular location, where in fact they do not have a bricks & mortar presence.

However it was argued then, which is supplemented now, that a Phony Florist often states that they are in a particular location, and the following examples were provided :
“Lily’s Ballarat Florist Shop”, “Bloomex Official Florist Ballarat”, “Sarah’s Florist Toowoomba”.

As at 6 September 2021, this Google Ad was captured for a “Florist Ballarat” Google search.

This is clearly misleading or deceptive or capable of such, in contravention of the legislation. Whether anyone has in fact been misled or not misled, is irrelevant to the wording of the legislation.

Why is it Misleading or Deceptive?

The web address brings up the purported Lilly’s presence in Ballarat with a Google map of Ballarat that shows NO location for the purported presence, i.e, there is no Ballarat address provided.

The (local) 03 5309 0407 number was rung and after waiting on hold for about 10 minutes (perhaps providing evidence of how busy they were), it was confirmed that in fact there was no Lilly’s Florist Shop in Ballarat. A recording of the telephone call is available.

CAN THIS BE ANY SIMPLER FOR THE ACCC?… apparently not.

As to the words “deliver to”, that does not get them off the hook regarding the overall impression given, because :

• a Real Florist also says they “deliver to”, as they are in fact at the location and it is an essential part of the service provided; and

• by using the term “deliver to” and nothing else, just reinforces an intention to provide a misleading overall impression; and

• that those two simple words “deliver to” do not magically overcome a business model specifically designed to mislead; and

• there is no distinctive message to convey that the Phonies are not at the location;

• but if there were such a message, these corporate cowboys well know that their bottom line would suffer and perhaps their hundreds of localised domain names and telephone numbers (designed to mislead), would be a massive waste of money;

• even though that would install some fairness into the saga, they simply don’t do it and they will continue to not do it, unless the ACCC makes them do it as some sort of resolution to this saga.

The lead into these corporate cowboys gathering orders, is of course by them literally paying millions of dollars per year to control the top positions on a Google search, which just repeat the overall misleading impressions given by the cowboys. However the ACCC shows little interest in pursuing this matter with Google which clearly is simpler to bypass as exhibited in :
Full Federal Court finds Employsure Google Ads misleading.

BOTTOM LINE
In a somewhat long winded and confusing way, the ACCC stated that as a regulator they look at addressing conduct in the market and detriment in the market, and not necessarily a section 18 contravention.

The ACCC was simply asked why Real Florists (plus myself when I commence business), should have to put up with so much dishonesty in the market by way of section 18 contraventions?

The wash up was, that the ACCC did not provide a specific answer to that question, but would take a “closer look”.

It was put to the ACCC that the writing was on the wall for Real Florist, they will end up going out of business if this unfair competition continues to expand.

As said previously there was to be a closer look, however after over 3 months, nothing has been forthcoming.

My experience of the telephone discussion in May, was that the ACCC waffled about matters irrelevant to section 18, and gave no coherent reasons for inaction.

Perhaps it would be helpful the ACCC published clear and understandable reasons for inaction, so we can all understand what these highly educated and highly (taxpayer) paid public servants are about, by way of totally failing to enforce the section 18 legislation in the florist industry. 

FAKE TESTIMONIALS
By way of my correspondence to the ACCC dated 18 May 2021, and brought up in the discussion with the ACCC, the ACCC were offered evidence of over 3,300 Fake Reviews / Testimonials by a particular Phony Florist, which appears to be writing their own testimonials.

There has also a been zero response by the ACCC to that offer and the fake testimonials are now approaching 4,000. Yes, FOUR THOUSAND FAKE SELF SERVING TESTIMONIALS since May 2020, not to mention other rorts such as non genuine price reductions in contravention of Australian Consumer Law (ACL).

Considering :
• all the self serving testimonials are available online; and

• the massive amount of those testimonials within the period of a 16 months archive; and

• independent consumer reviews, telling entirely different stories of horror & disgust; and

• all that is required for the ACCC to initiate its information gathering powers under a Section 155 Notice, is for the ACCC to have reason to believe that there may be a contravention of the ACL;
the reason to believe is just begging for attention.

It is utterly unfathomable why the ACCC sits on its hands, and not investigate or even inquire about this behaviour, as if the ACL legislation did not exist.

Making an example of just one of these Phonies (there are some particular bad ones), would send a clear message to all of them.

THE FUTURE
So having settled in at Caloundra, I will be continuing to try to contact every florist business in Australia (apart from those already contacted), seeking more support. I can be contacted at gordon@getmail.com.au if anyone can assist with this, for example a list of email contacts.

If the websites I publish were not factually accurate, I would surely be sued by these corporate cowboys which have demonstrated their true colours of thuggery. However if that was to happen, my history (which I am sure they have investigated), tells them that not only that there would be a vigorous defence, but also a smorgasbord of counterclaims.

What would follow would likely be a Court having to decide if the cowboy conduct was misleading. I am fairly certain that the corporate thugs would not like that, and also not like the massive expense that they would incur.