Selected cases

Federal Court of Australia · [2020] FCA 1004

ACCC v Kogan Australia

A Federal Court case about online discount advertising, price increases before a promotion and whether a promoted saving was genuine.

Federal Court of Australia17 July 2020

Plain-English explainers, not legal advice. Use the linked official source for section-level detail, and get advice for your situation.

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Quick read

  • Sale pricing must be real.
  • A Federal Court case about online discount advertising, price increases before a promotion and whether a promoted saving was genuine.

Use this to check

  • Discount claims need price-history checks before launch.
  • Urgency copy can increase risk if the underlying saving is not genuine.
  • Marketing, product and legal teams need one source of truth for promotional pricing.

Decision snapshot

  1. What happened

    • Kogan ran a tax time promotion telling customers they could use the code TAXTIME for 10% off.
    • The ACCC case showed that Kogan had increased prices for 621 products shortly before the promotion and then reduced many of those prices after the promotion ended.
    • The campaign ran through the website, emails and SMS messages, reaching millions of consumers.

  2. What the court had to decide

    • The Court had to decide whether the promotion represented a genuine 10% saving and whether that representation was misleading in circumstances where product prices had been increased shortly before the promotion and reduced again after it ended.

  3. What the court decided

    • The Federal Court found Kogan had made false or misleading representations about the tax time promotion.
    • A later penalty decision ordered Kogan to pay $350,000, reinforcing that online discount mechanics are a consumer law issue, not just a merchandising choice.

Practical impact

Practical read

  • Sale pricing must be real.
  • If a business raises prices before a promotion and then advertises a discount, the legal question is whether customers are actually getting the saving the campaign suggests.

Useful next steps

  • Discount claims need price-history checks before launch.
  • Urgency copy can increase risk if the underlying saving is not genuine.
  • Marketing, product and legal teams need one source of truth for promotional pricing.
  • Check price history before advertising percentage-off claims.
  • Separate genuine clearance pricing from short-term price manipulation.

Practical read

Kogan is a simple story with a brutal marketing lesson. A discount campaign can be misleading if the price was lifted first so the advertised saving is not genuine. The risk sits in the customer's impression, not only in the arithmetic at checkout.

For ecommerce businesses, this is exactly the kind of issue that can slip between growth, merchandising and legal. Someone changes price files, someone launches urgency copy, someone sends the SMS. If the team has not checked the price history, the campaign can become an ACL problem.

Checks to run

Key points

  • Check price history before advertising percentage-off claims.
  • Separate genuine clearance pricing from short-term price manipulation.
  • Review email, SMS, banner and checkout copy together.
  • Keep approval evidence for major promotional campaigns.

Key takeaways

  • Discount claims need price-history checks before launch.
  • Urgency copy can increase risk if the underlying saving is not genuine.
  • Marketing, product and legal teams need one source of truth for promotional pricing.

Related topics

Consumer Law & TradingDigital & Ecommerce

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