The Federal Court of Australia has ordered Thermomix In Australia Pty Ltd (Thermomix) to pay penalties totalling $4,608,500 for making false or misleading representations and misleading the public in relation to its Thermomix kitchen appliances.
The Court held that Thermomix breached the Australian Consumer Law by making false or misleading representations to certain consumers through its silence about a safety issue affecting its TM31 appliance, which the company knew about.
The company knew from 7 July 2014 there was a potential risk of injury to users caused by the lid lifting and hot food and/or liquid escaping from the mixing bowl before that food and/or liquid had settled.
Thermomix continued to supply and promote its product until 6 September 2014 and didn’t notify consumers until 23 September 2014 that there was a known safety issue.
"By failing to act swiftly and alert consumers about the potential safety hazard with the TM31 appliance, Thermomix misled a number of consumers and placed their safety at risk," ACCC Commissioner Sarah Court said.
In delivering judgment, Justice Murphy stated that this contravention was serious and exposed a large number of consumers to the risk.
Thermomix was also found by the Court to have made false or misleading representations to certain consumers about their consumer guarantee rights.
Thermomix told certain consumers either that refunds or replacements were not available to them, or in the case of one consumer that their entitlement to a refund or remedy was conditional on the consumer signing a non-disclosure agreement, preventing them from making negative comments about Thermomix, when this was not the case.
"Thermomix’s penalties should serve as a reminder to all businesses that consumers have rights in relation to faulty products which businesses cannot restrict, alter, or remove," Ms Court said.
"When a consumer is entitled to a refund or replacement under the ACL, businesses cannot place conditions on that right to a refund or replacement and customers certainly shouldn’t have to sign non-disclosure agreements."
The Court also held that Thermomix caused false or misleading statements to be made in the media in March 2016 about the nature of the October 2014 recall of the TM31.
Thermomix also admitted that it failed to comply with mandatory reporting requirements on 14 occasions for injuries arising from the use of Thermomix appliances. Businesses are required to notify the Commonwealth Minister (via the ACCC) within two days of becoming aware that a person has suffered a serious injury associated with the use, or foreseeable misuse, of a product they supply.
Notes to editors
Thermomix co-operated with the ACCC in resolving these proceedings, and has consented to orders which included declarations, the implementation of a comprehensive ACL compliance training program, publication orders requiring notices be published on Thermomix’s website and Facebook page, and payment towards the ACCC’s costs.
Background
The ACCC initiated proceedings against Thermomix in Australia Pty Ltd in June 2017.
Thermomix supplied the TM31 kitchen appliance in Australia up until 6 September 2014. The current model, the TM5, has been supplied in Australia since September 2014.
Thermomix first notified its customers of the TM31’s safety issue by way of a Facebook post on 23 September 2014, and subsequently sent emails to affected TM31 customers notifying them of the safety issue on 25 September 2014. Approximately 105,000 of the potentially affected TM31 appliances were supplied to Thermomix for sale to Australian customers.
A voluntary recall notice in relation to a safety issue with the TM31 appliance was published on the ACCC’s Product Safety website on 7 October 2014 (PRA 2014/14361), following notification by Vorwerk Elektowerke GmbH & Co. KG (Vorwerk), the manufacturer of Thermomix appliances.
The recall facilitated the replacement of the original grey lid sealing ring with a new green lid sealing ring for all affected TM31 appliances. The recall notice also provided revised safe operating instructions that all Thermomix users should follow.
Separate to the recall action, Thermomix and Vorwerk advise that all TM31 appliances should only be operated with a green sealing ring, and customers should replace their sealing rings every two years.
Consumers should contact Thermomix if they require a new sealing ring.
The ACCC is continuing to monitor the recall action and consumer reports. TM31 users are reminded to consult their instruction manual and follow the manufacturer’s directions.
Consumers should contact Thermomix directly if they experience a safety issue with their appliance, and make a report to the ACCC via the Product Safety website.
Thermomix can be contacted via their website: www.thermomix.com.au
