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‘Pink tax’: Why is gender-based pricing discrimination legal?
The pink tax prevails in Australia due to the lack of laws and regulations preventing the mark-up of women’s products at a federal and state level, and surprisingly, there is currently no legislation at all preventing gender-based pricing discrimination, write Alyssa Whiffin, Michelle Tan, and Leah Ahokava.
Alyssa Whiffin, Michelle Tan, and Leah Ahokava
At the end of this financial year, the “pink tax” might not be something you discuss with your accountant. However, the financial impact on 50 per cent of Australia’s population from the pink tax (which is not a real tax, just a name for the inequality in costs that women pay for products and services that are marketed towards them, even when there is no difference between the same product or service for men) might be more unfair than you realise, and it’s time to look at solutions.
If you’re a woman, there’s a good chance that you’re aware of the pink tax, where gender-based pricing discrimination is often subtly applied to various goods and services, such as the $2 difference between men’s and women’s razors, body washes, stationary, toys, clothes, dry cleaning, the list goes on and on.
There’s generally not a great deal of reasonable justification for these price discrepancies, with one estimate noting that the pink tax causes women to pay approximately $1,300 more than men per annum as these small discrepancies accumulate.
The pink tax issue is not confined within our borders – similar disparities have been reported in New Zealand, the UK, and the US. Somehow, it’s able to persist.
Why has it been so difficult to implement legislation against the pink tax?
The United Nations has called on countries worldwide to take steps to eliminate the pink tax to ensure women achieve full and equal participation in the economy. However, not many countries have been successful.
The pink tax prevails in Australia due to the lack of laws and regulations preventing the mark-up of women’s products at a federal and state level, and surprisingly, there is currently no legislation at all preventing gender-based pricing discrimination – leaving Australian consumers unprotected with pricing going unchecked.
Interestingly, the old Competition and Consumer Act, known as the Trade Practices Act, originally introduced in 1974, contained a prohibition on price discrimination in section 49. After numerous recommendations for repeal, it was eventually repealed by the Competition Policy Reform Act 1995, section 14.
The Dawson review that happened before the Trade Practices Act review found that there was a concern that section 49 generally discouraged competitive prices and so worked against economically efficient outcomes. The Hilmer committee, which recommended that s49 be repealed, concluded that price discrimination generally enhances economic efficiency.
What has been done about it?
In 2001, a Victorian government inquiry into marketplace discrimination recommended the Minister for Fair Trading consider amending the law to include the prohibition of marketplace discrimination on the basis of gender. However, no specific legislation was ever passed, and industries are instead expected to self-regulate their prices.
The only recent progress made in Australia was A New Tax System (Goods and Services Tax) (GST–free Health Goods) Determination 2018, where the 10 per cent GST was removed on feminine hygiene products. While this was a great step in the right direction, not much has happened since.
The US has made efforts to address the pink tax. The Pink Tax Repeal Act, which mandates that any comparable products marketed towards men and women must be priced equally, has been introduced several times but never passed.
The state of New York officially made it illegal for businesses to charge a pink tax on consumer goods and services marketed towards women and girls in 2020, with California following suit in 2022 when it signed a bill prohibiting gender-based pricing discrimination within the state.
What are our next steps?
To continue to address the pink tax, Australia could consider several legislative approaches. One would be to introduce explicit prohibitions against gender-based pricing discrimination, like those enacted in New York and California. Revising section 46 of the Competition and Consumer Act 2010 to specifically mention gender could help address the misuse of market power in the context of gender discrimination.
The Australian Competition and Consumer Commission (ACCC) could also play a more proactive role by establishing guidelines for businesses to follow, aiming to prevent gender-based price discrepancies. The ACCC states that businesses are generally able to set their own prices. However, they must do so independently of their competitors as it is illegal for businesses to agree on prices among themselves or engage in other anti-competitive pricing behaviour.
It’s important to raise awareness about this issue and push for reforms that reflect fairness and equality.
Alyssa Whiffin, Michelle Tan, and Leah Ahokava are law graduates at McCabes.
