One consumer who complained about technical issues with his device was told by Fitbit there would be no exact date for a resolution. The consumer then requested a refund, which was rejected by Fitbit, which told them they did not qualify for a refund.

“To be eligible for a refund, there are two requirements needed: within 45 days upon shipment of the device; [or] purchased directly from Fitbit online web store,” the consumer was allegedly told.

Another consumer was given a faulty replacement device, but was denied another replacement by Fitbit on the basis that the “two-year warranty period” of the device he purchased had expired.

In a statement, Fitbit said: “Fitbit will be reviewing the ACCC’s allegations and does not have further comments to share at this time.”

The ACCC will seek penalties, injunctions, and a compliance program in the event it succeeds in the Federal Court case.

Cass-Gottlieb told this masthead the regulator would be seeking higher penalties if the court determined Fitbit had contravened Australian consumer law.

“If we get to that stage, then yes, one of the factors that we will put to the court in support of higher penalties will be that there had been previous conduct of concern and a commitment to address that conduct,” she said.

“We are very keen that Fitbit and other manufacturers with global businesses should have processes in place to ensure compliance with the Australian consumer law.”

Fitbit was acquired by Google in January 2021 for $2.7 billion. At the time, the ACCC was investigating whether the transaction may be anticompetitive for other players in the wearables market. The consumer watchdog also had regulatory concerns about Google’s use of personal user health data it would collect through Fitbit.

Rod Sims, former longtime ACCC chair, said the regulator was considering its legal options after Google completed the acquisition before ACCC’s investigation was complete.

However, Cass-Gottlieb confirmed that the regulator had since dropped its investigation into the Google-Fitbit transaction, but that it had ongoing concerns about data handling.

“We do not have available to us sufficient evidence to decide to take the next step, which will be court proceedings, in respect of the acquisition,” she said.

“We remain concerned about some of the issues that were raised into ... the aggregation of data through the proliferation of wearable devices and wearable operating systems such as health data.

“We have, however, reached a point where we are not continuing that investigation.”

The Business Briefing newsletter delivers major stories, exclusive coverage and expert opinion. Sign up to get it every weekday morning.