By Karl Hoerr -
The Federal Court has found that product discounts promoted by supermarket giant Coles, were misleading and in contravention of the Australian Consumer Law (ACL). In a case brought by the Australian Competition and Consumer Commission (ACCC), Justice Michael O’Bryan found all but one of the promotions that went into evidence, were misleading.
The ACCC launched the case in 2024, submitting that Coles had temporarily increased the retail price of 245 products, before launching promotions at prices that were lower than the temporary price, but higher or the same as the products had ordinarily been sold for.
Coles promoted the products in 2022 and 2023, as part of its popular ‘Down Down’ campaign, which had been running since 2010. As part of the ACCC’s case, the Federal Court of Australia ended up considering a list of 12 sample products from the total. Two of the products involved two separate tickets. In the end, Justice O’Bryan found 13 of the 14 tickets considered in the case, were misleading.
As noted in the judgment, “a central feature of the promotion was the use of ‘was/now’ pricing, by which the Down Down promotional price was compared to an earlier higher price.”
The list of products included Arnott’s Shapes Multipack Variety 15 pack, Danone Yopro Yoghurt Vanilla and a three-pack of Viva Paper Towel.
In his decision, Justice O’Bryan described his conclusion as relatively narrow. “The Down Down tickets were misleading because the sample products had not been offered for sale by Coles at the ‘Was’ price for a reasonable period.”
The Court found that if Coles had offered the products at the ‘Was’ price for 12 weeks, rather than four weeks, the tickets would not have been misleading.
In a statement, ACCC Chair Gina Cass-Gottlieb welcomed the Court’s findings. “The ACCC brought this case in the public interest because we considered that Coles’ pricing practices within its ‘Down Down’ program made it harder for customers to identify genuine value for money while shopping for household essentials.”
Cass-Gottlieb said the ACCC had received complaints from consumers about the company’s discounting claims. “We understand how important it is for consumers to get value for their supermarket purchases, and decided to take action to test the discounting practices in Court.”
The ACCC Chair said the case had “increased transparency and accountability” of the program. Penalties and other orders sought by the competition regulator, haven’t been determined.
In separate proceedings launched by the ACCC against Woolworths over its ‘Prices Dropped’ discount promotion, the Federal Court is yet to hand down a judgment.
