Unsubstantiated representations: An unsubstantiated reform?

This essay analyses the recent amendment to the Fair Trading Act 1986 that created a prohibition of “unsubstantiated representations” in trade. The reform process presented an opportunity to bring the FTA in line with recent amendments to the Australian law that had addressed the same issues. However, New Zealand opted to go further. This essay traces the prohibition through the wider consumer law reform process to investigate how the final provision was arrived at. By critically analysing the process that led to the amendments, the essay suggests that the decision to create a prohibition was based on flawed reasoning. In particular, it is argued that New Zealand should have followed the Australian approach, and that creating a prohibition has instead produced unnecessary liability in the absence of sufficient justification.