Misleading and deceptive conduct
The Commerce Commission has filed criminal charges against HelloFresh New Zealand, alleging that the meal-kit delivery company misled former customers when reactivating cancelled subscriptions.
The charges relate to conduct where customers were allegedly offered discount vouchers via cold calls without being clearly informed that accepting the voucher would reactivate their subscriptions and result in charges to their account.
Commerce Commission Deputy Chair, Anne Callinan, stated that the alleged conduct may have breached the Fair Trading Act 1986, which prohibits misleading and deceptive practices. Given the prevalent use of subscription-based services, the Commerce Commission is focused on tackling ‘subscription traps,’ where consumers may be unwittingly signed up for ongoing service contracts.
While the allegations have yet to be tested in court, the case serves as a reminder for businesses to ensure their sales practices are clear and transparent, and for consumers to remain vigilant.
Misleading or deceptive conduct, even if unintentional, can result in significant penalties and reputational damage. The Commerce Commission has signalled that enforcing fair trading laws in the online subscription space is a priority.
Whakaari Management Limited conviction overturned
In previous editions of Commercial eSpeaking, we have reported on the conviction and sentencing of Whakaari Management Limited (WML). The District Court convicted WML under section 37 of the Health and Safety at Work Act 2015 for failing to ensure the safety of tourists visiting Whakaari/White Island following its December 2019 eruption that killed 22 people and severely injured 25 more.
Section 37 imposes a duty on those who manage or control a workplace to ensure, so far as is reasonably practicable, that their workplace is without risks to the health and safety of any person.
The High Court has since overturned WML’s conviction[1]. Central to this decision was the interpretation of ‘management or control of the workplace.’ WML’s role was limited to granting access to Whakaari – it did not actively direct or oversee activities on the island. This lack of operational control meant WML did not manage or control the workplace in the sense contemplated by section 37.
The High Court found that the risk of people being on Whakaari during an eruption stemmed from the work activity controlled by the tour operators, not WML’s business operations. WML had imposed health and safety obligations on the tour operators and relied on regulatory guidance in respect of the risk. As a result, the High Court was satisfied that, even if section 37 had been triggered, WML had taken all reasonable steps to discharge such a duty.
Although this decision may be a relief to many business owners, we urge continued caution. Neglecting to exercise power or control does not exempt a business from its duty under section 37. A practical and fact-specific exercise should be undertaken to assess whether the business can actively control or manage the workplace. Businesses must continue to identify circumstances where a duty may be owed and ensure appropriate steps are taken to discharge this.
The Resource Management Act 1991 to be replaced with two new acts
The government recently announced that the Resource Management Act 1991 (RMA) will be replaced by two new acts: the Planning Act and the Natural Environment Act. This is the final stage of the government’s three-phase resource management reform. It follows the repeal of the Labour government’s RMA replacement legislation, amendments to the RMA and implementation of the Fast-Track Approvals Act 2024.
The dual act approach aims to minimise duplication between laws and regulations, and to provide a more concise framework for managing the effects on the natural environment. The Planning Act will focus on land-use planning and regulation, while the Natural Environment Act will address the use, protection and enhancement of the natural environment.
Key proposed changes include:
- Nationally standardised land use zones: the new resource management system will have one combined plan per region. Each plan will include environmental, spatial planning and planning chapters
- Resource consent: resource consents will still be required. However, with the new nationally standardised land use zones, there will be more permitted activities, leading to fewer resource consents being required, and
- Compliance and enforcement: a national compliance and enforcement regulator will be established to ensure consistency and reduce variability in compliance and enforcement activities. This will be done in a separate legislative process.
The government has indicated that it intends to introduce the new legislation to Parliament by the end of 2025, put it before the select committee in 2026, and pass it into law before the general election at the end of 2026.
________________
[1] Whakaari Management Ltd v WorkSafe New Zealand [2025] NZHC 288.