From 28 March 2026 the maximum penalty for a corporation that misleads customers rose to the greater of A$100 million, three times the benefit gained or 30% of turnover. The ACCC has stopped warning and started fining, including its first-ever influencer penalty. Most marketing teams have a process for brand guidelines and none for proving a claim is true, and that gap is now a balance-sheet risk.
A claim you approve without evidence is not a message. It is a cheque you are hoping stays in the drawer.
The Take: Australia just repriced the words your marketing team publishes. A claim you cannot prove is now worth up to A$100 million against your own balance sheet, and the regulator has stopped posting warning letters. If your sign-off process checks tone but never evidence, you are approving liabilities and calling them campaigns.
What actually changed on 28 March 2026?
From 28 March 2026 the maximum penalty for misleading a customer is the greater of A$100 million, three times the benefit gained or 30% of turnover. That ceiling sits over every claim you publish.
The number comes from a rewrite of the Australian Consumer Law. Gilbert and Tobin note that the new maximum for a misleading-conduct breach is the greater of A$100 million, three times the benefit obtained or 30% of adjusted turnover during the breach period, double the previous A$50 million cap. It applies to conduct on or after that date. Every headline claim you publish now sits under it.
Picture an approved marketing claim as a cheque. You write "clinically proven" or "50% recycled" or "cheapest in the country". You sign it in the company name. The customer banks it the second they believe you. The only question that matters is whether there are funds behind the cheque. The funds are your evidence.
Why is this not a marketing problem?
This is not a marketing problem. It is a treasury problem that happens to be written in marketing's handwriting.
Marketing teams run a tight process for the things that carry no legal risk. Brand guidelines get a document. Tone gets a workshop. Colour gets a hex code locked to the last digit. Ask the same team for the file that substantiates the number on the hero banner and you get a shrug or a link to a supplier email from two years ago. In the businesses we look at, almost none can hand you the evidence file behind a headline claim on request.
A cheque with no account behind it is not an asset. It is an unsecured promise the business has to honour the moment someone asks to see the money. The regulator is now the one asking.
Who is actually being fined?
Three recent moves show the range.
The Clorox case is the one to sit with. The Federal Court ordered Clorox Australia to pay A$8.25 million for telling buyers that certain GLAD bags were "50% Ocean Plastic". The plastic was collected from Indonesian communities with no formal waste management, sited up to 50 kilometres from a shoreline. One detail matters for reading the risk: that conduct predated the new cap, so Clorox was penalised under the old regime. Read A$8.25 million as the floor, not the ceiling.
The maximum penalty for a single misleading claim made on or after 28 March 2026, up from A$50 million
The influencer case is smaller in dollars and larger in signal. PhotobookShop paid A$39,600 over two infringement notices for posting an undisclosed gifted review and making undisclosed edits to an influencer's review. It was Australia's first financial penalty for undisclosed influencer promotion. The investigation started when the influencer reported that the company had asked them not to disclose the gift.
If you think a green claim or a gifted post is a creative decision, the ceiling above tells you what it is. The ACCC has named greenwashing and misleading environmental claims a compliance and enforcement priority for 2026-27. The regulator has told you where it is looking. Very few teams have changed how they sign off in response.
What I would do about it
Treat claim sign-off like a financial control, because it now is one. Three moves.
One. Put a substantiation step before publish. No claim goes live until someone who did not write it can point to the proof. The same discipline you would apply to a figure in a board pack.
Two. Keep an evidence file per claim. One claim, one folder, the source document, the date, the person who verified it. If you cannot open that folder in ten seconds you do not hold substantiation, you hold a hope.
Three. Make sign-off a named accountability, not a group nod. A cheque needs a signature. So does a claim. One person owns each one, and their name is on it.
If you are about to publish a comparison, a percentage or a superlative this week, stop. Ask for the folder first. If it is empty, the claim is not ready, no matter how good the line reads.
Where this lands
Here is what I think. The teams that win the next two years will not be the ones with the boldest claims. They will be the ones who can honour every cheque they write, on demand, without a scramble.
The regulator has stopped warning and started presenting the cheques at the counter. You do not get to argue about the funds after one clears. Building the evidence file behind every claim is slow, unglamorous and exactly the work that keeps A$100 million where it belongs. That is the work we do inside NR Studio.
Frequently asked questions
Does the A$100 million penalty apply to claims I published before 28 March 2026?
No. The higher maximum applies to conduct on or after 28 March 2026. Earlier conduct is judged under the previous A$50 million cap, which is still large enough to reshape a year.
Is my small business too small for the ACCC to bother with?
The PhotobookShop penalty came from a single influencer review worth a fraction of a percent of that A$100 million ceiling. Size of business is not the filter. Whether the claim is provable is.
What actually counts as substantiation?
A source you could hand a regulator without flinching. Test data, a supplier certificate, an audited figure, a dated methodology. A supplier's marketing email or an internal assumption does not count.
Do influencer and affiliate posts count as my marketing?
Yes. If you gift a product or pay for a post, an undisclosed endorsement is your liability, not just the creator's. The disclosure has to be clear and the claim underneath it still has to be true.