ACCC snipes again: What Brands Can Learn From HiSmile and Grill’d’s crackdown?

The Australian Competition and Consumer Commission’s (ACCC) recent crackdown on viral toothpaste brand HiSmile and burger chain Grill’d has given brands a major wake-up call: disclosure is not optional.

Whether in Australia or any other global market, the principle is the same: be honest with consumers.

The consumer watchdog handed HiSmile a $138,600 penalty for “misleading social media advertisements” and sued Grill’d over alleged “greenwashing”, or, in simple terms, marketing that may have misled consumers.

What went wrong?

If you’re being sold the dream of shining white teeth from a product, clarity matters. The social media videos promoting HiSmile’s Glostik Tooth Gloss product, which the ACCC says prompted consumers to purchase, have since been discontinued. The brand was also pulled up over social videos featuring HiSmile employees disguised as “random shoppers”, resulting in seven infringement notices.

“Misleading social media advertisements can reach millions of consumers and may impact their purchasing decisions,” ACCC Commissioner Luke Woodward said in a statement.

On the other side, the watchdog has launched federal court action against Grill’d, alleging the burger chain overstated the impact of its Tree Day Tuesday campaign.

Between January 2021 and April 2024, Grill’d allegedly represented to customers that it would donate $1 from every Tuesday burger purchase towards tree planting. But the ACCC claims only about 4% of more than 5 million Tuesday burger sales resulted in a donation, due to restrictive eligibility conditions.

According to the regulator, only dine-in orders made at the front counter qualified. Online orders, takeaway orders and QR code table orders did not.

Simple lesson for brands

Whether it is influencer marketing or a traditional campaign, the lesson is easy: disclosure cannot be left to interpretation.

Brands need to be clear about when disclosure is required, what counts as a commercial relationship, and how that disclosure should appear across different formats. That does not strip away authenticity. It removes guesswork.

And that clarity needs to be formalised, not assumed.

For creators, disclosure requirements should be clearly called out in briefs and written into contracts as part of the agreed deliverables. This is not an optional guideline or a platform preference. It is a core part of the work being commissioned.

Just as brands specify content formats, posting timelines, usage rights and approval processes, they need to specify disclosure expectations with the same precision. When disclosure is treated as a defined deliverable, everyone is protected. Creators know exactly what is expected. Brands have a clear record that compliance was required and agreed. In a market facing sharper regulatory scrutiny, that clarity matters.

Making disclosure part of the brief and contract is not about controlling creators. It is about establishing a shared standard that enables creator partnerships to operate transparently, professionally, and at scale.

Because in marketing, credibility is the product. And disclosure is the price of keeping it

‍The law is catching up with the creator economy

In Australia, influencer disclosure is governed by the Australian Consumer Law and enforced by the Australian Competition and Consumer Commission (ACCC). With the local creator economy now estimated to exceed $1.2 billion, the ACCC is treating influencer marketing with the same seriousness as any other advertising channel. This is no longer a niche tactic or side-hustle industry. It is a core marketing channel that brands rely on to drive real commercial outcomes.

In early 2023, the ACCC launched a formal investigation into influencer behaviour online, conducting a sweep of 118 influencers. While this represented only a fraction of the more than 1.1 million creators in Australia with over 1,000 followers, the focus was deliberate. The investigation centred on poor disclosure rather than hidden contracts. Gifted products left unmentioned. Partnerships framed as personal recommendations. Content that appeared authentic but was not clearly labelled.

Under Australian Consumer Law, undisclosed or misleading endorsements are considered deceptive conduct, regardless of whether the incentive was cash, product, travel or hospitality. Penalties reflect the seriousness of the offence. Individuals face fines of up to $2.5 million. Brands face penalties of up to $50 million or 30 per cent of annual turnover when the benefit cannot be precisely calculated.

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