As demand for Rapid Antigen Tests greatly outstrips supply nationwide and States and Territories implement contact protocols that depend on RAT access the media is awash with cases of pricing orders of magnitude above the recommended retail price, and even ‘broken’ or unpackaged tests being sold, it is important for all fuel retail operators to review the requirements in this area and to heed the cautions of the ACCC to ensure that they are compliant while retailing this hot property.

 RAT Retailing Review

 As ACAPMA explored back in October 2021 when they were first approved by the TGA; https://acapmag.com.au/2021/10/restrictions-on-retailing-rapid-antigen-self-tests/ , Rapid Antigen Tests (RATs) come with a raft of considerations when retailing. 

 In order to ensure that the RAST are being compliantly retailed, all businesses should be communicating to their staff that;

 They must not promote the RAST as a diagnostic test

This is in breach of the TGA requirements and is in breach of the false or misleading statements requirements of the Australian Consumer and Competition Compliance laws.

 The RAST that are approved for retail sale are not diagnostic they are approved for screening purposes only.  As per the TGA a person can only be said to either have COVID-19 or not have COVID-19 following a diagnostic PCR test.

 So staff must avoid any suggestion, recommendation or promotion that suggests the RAST can inform the customer that they have or have not got COVID-19.  Signs such as “COVID-19 Tests” or comments such as “find out if you have COVID-19” would be in direct breach of both the TGA requirement and the ACCC requirements as false and misleading, as would anything that implied surety of the result.  Appropriate signage would identify that the RAST are screening tests such as “COVID-19 Self Screening Test”.

 They must not promote one brand of RAST over another

This is in breach of the TGA requirements.  It would be considered a breach to advertise or promote the brand offered onsite as better than any other brand offered at any other location.

 They must be cautious in the information provided to customers about RAST

Fuel retail staff are guard towards going above and beyond for customers, but it is important that staff direct any questions about the efficacy, operation or use of RAST to the instructions in the packaging and not provide or offer any further information or recommendations.  Staff are not healthcare professionals and as such should not be providing any advice on use of a screening test for a public health risk.

 Pricing Concerns, Considerations and Cautions

 Following media coverage of seemingly excessive mark ups above recommended retail price and ‘broken’ pack sales the ACCC has launched a warning to all retailers…they are watching and they are willing to name and shame retailers taking excessive advantage of the current demand storm.

 “While suppliers are generally able to set their own prices, businesses must not make false or misleading statements about the reason for high prices.  We wont be shy to name and shame suppliers and retailers we consider to be doing the wrong thing” explained ACCCs Rod Sims

 While a Recommended Retail Price (RRP) is just that, recommended, and a business can set their own prices and profit margins based on their own requirements, the ACCC has called out businesses charging 3, 4 up to 5 times the RRP for RATs.

 What is a breach, not only of trading and competition laws, but also of the TGA approvals, is ‘breaking up’ packs.  As a restricted product the RATs have to be sold in their complete, approved kits, and breaking them up results in a series of breaches that are attracting high penalties.

 Which RATs are approved for sale in Australia?

 For a list of approved RATs see; https://www.tga.gov.au/covid-19-rapid-antigen-self-tests-are-approved-australia

 Here to Help

 HR Highlights are things to consider, implement and watch out for in your business.  They are provided as general information for you to consider and do not constitute advice.  You should seek further advice on your situation by contacting your legal advisor.  ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment professionals via employment@acapma.com.au  , it is free for members.  ACAPMA Membership delivers this and more benefits, see; https://acapma.com.au/membership/   for more information.

 Elisha Radwanowski BCom(HRM&IR
ACAPMA

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