In this article, we take a look back at the Commerce Commission’s caseload in the last 12 months, and what to look out for in 2025. We also provide a brief update on the recent fine imposed on Bed, Bath and Beyond for breach of the Fair Trading Act.

Commerce Commission’s 2024 highlights and 2025 forecasts

The Commerce Commission circulated a summary yesterday of its key actions under the Commerce Act in 2024, along with what it predicts for 2025. We discuss some of these highlights below.

Across its cartel and anti-competitive conduct portfolios, in 2024 the Commission opened 19 investigations, and decided 20. Notable cases included sentencing in the Commission’s first criminal cartel case in the construction sector, and the $3.25m fine against Foodstuffs North Island for use of restrictive land covenants. Of the 20 decided cases, seven resulted in no further action. Of particular interest in 2025 will be the outcome of the proceedings against the second (currently unnamed) individual defendant in the criminal cartel prosecution, who has pleaded not guilty to the charges.

Turning to the Commission’s merger investigations team, 2024 marks the first time since 2018 that the Commission has declined to grant clearance to merger parties (both for the proposed merger of Foodstuffs North and South Island, along with the proposed acquisition of Serato by Alpha Theta). The general slowdown in M&A activity over the last 18 months can be seen in the lower caseload for the Commission’s mergers team compared to previous years, with the team only receiving four clearance applications and one authorisation application during the course of 2024. 

2025 looks like a significant year for merger regulation in New Zealand. The Government’s review of the Commerce Act proposes amendments to the existing merger regime, including widening the “substantial lessening of competition” assessment to capture cumulative acquisitions of small competitors (creeping acquisitions), and acquisitions of small and/or recently established competitors that do not currently pose a serious competitive threat, but may do in the long-term. If these types of acquisitions were brought within the scope of the Commission’s focus, we expect that the number of applications to the Commission for clearance would increase. For more information on the proposed amendments to the Commerce Act, refer to our article from December last year. 

Key additional workstreams on the Commission’s radar for 2025 are assisting with the implementation of the recommendations coming out of its market study into personal banking services, along with continuing to provide information and outreach for businesses to help them better understand their obligations. This will include an update to the Commission’s mergers and acquisitions guidelines.

Commerce Act review: submissions close this Friday

As a reminder, submissions to MBIE on the proposed amendments to the Commerce Act close this Friday 7 February. If you have any questions or comments about the proposed amendments, or would like assistance with preparing a submission, please get in touch with one of our experts.

The discussion document setting out the proposed amendments is available on MBIE’s website.

Bed, Bath and Beyond in breach of product safety standards

The Auckland District Court has fined homeware retailer Bed, Bath and Beyond (BBB) $230,000, following an investigation brought by the Commerce Commission into BBB’s failure to properly label over 27,000 products with the correct safety information. The Fair Trading Act 1986 (FTA) prohibits the selling of any product which is subject to a product safety standard if that product is in breach of the relevant standard. Due to the number of unlabelled products, this case represents the largest breach of this prohibition under the FTA to date.

Detailed information on how businesses can comply with product safety standards can be found on the Commission’s website. If you are concerned that your business may be at risk of breaching product safety standards and/or need any assistance with an information request from the Commission, please get in touch with one of our experts.

Special thanks to Henry King for his assistance in preparing this article.