Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2026] FCA 598

This case is about what a customer is likely to understand when they see a was-now discount ticket. The ACCC alleged that Coles used its long-running Down Down promotion to present certain grocery products as discounted after first increasing their prices for a short period. According to the judgment, the regulator said that between February 2022 and May 2023 Coles temporarily increased the retail prices of 245 products and then placed those products on Down Down promotions at prices that were lower than the temporary higher prices, but higher than, or the same as, the prices at which the products had ordinarily been sold before the increase.

The Court described Down Down as a well-known Coles promotional program. It had been introduced in 2010 and remained a recognised promotion during the relevant period. In-store and online, the promotion used distinctive red-and-white tickets or product tiles, the words “Down Down” in large bold font, the product name, the current promotional price, and in most cases a smaller “Was” price with a date. The commercial significance of that presentation was central to the case. The dispute was not simply whether Coles had ever charged the higher price. It was whether the ticket conveyed to ordinary consumers that the current price was a genuine reduction from the product’s previous regular price.

The ACCC said yes. Coles said no. Coles argued that the ticket only conveyed that the current Down Down price was lower than the immediately preceding genuine non-promotional shelf price. That difference in characterisation mattered because the higher price had only been used for a limited period before the promotion.

The judgment explains the pricing pattern by reference to three prices. Price 1 was the product’s earlier price before any increase. Price 2 was the higher price during the alleged price spike period. Price 3 was the later Down Down promotional price. The ACCC’s case was that customers were shown a discount from Price 2, but that this did not represent a genuine saving from the product’s earlier ordinary selling position because Price 2 had only been in place for a relatively short period and Price 3 was often still above, or the same as, Price 1.

The ACCC alleged 255 separate instances across 245 affected products because some products went through the pattern more than once. The judgment states that in 249 instances the Down Down price was higher than the previous regular price and in 6 instances it was the same. The regulator’s case deliberately disregarded changes in Coles’ wholesale list prices. The Court recorded that the ACCC said consumers do not see those wholesale arrangements and the tickets did not refer to them, so the consumer message had to be assessed from the face of the promotion.

Coles’ answer was commercially detailed. It said that during the relevant period suppliers were seeking cost price alterations and there were significant cost increases, including global commodity prices, packaging, freight, utilities and international shipping. Coles said that when supplier costs or promotional funding changed, products could come off the Down Down program, move to a non-promotional white-ticket price, and later return to Down Down at a lower promotional price. On that view, the was price was a genuine undiscounted shelf price and the later Down Down price was a genuine discount from that shelf price.

The Court also noted that Coles said the genuineness of the was price should be assessed by a range of factors, including the commercial circumstances in which the price was determined, the period over which the product was offered at that price and the volume of sales at that price. That shows the case was not argued at a superficial level. It involved both consumer impression and detailed evidence about how Coles priced products and dealt with suppliers.

The Court did not decide liability by individually trying all 245 products. Instead, it ordered that liability be tried using a sample-product approach. The parties agreed 12 sample products: Karicare Follow On Formula, Coca-Cola Soft Drink 2 litre, Pedigree Adult Wet Dog Food, Arnott’s Shapes Multipack Variety 15 Pack, Bragg Nutritional Yeast, Danone Yopro Yoghurt Vanilla, Colgate Total Original Toothpaste, Coles Finest Quince Paste, Rexona Anti Persp Deodorant, Lurpak Slightly Salted Spreadable Tub, Nature’s Gift Adult All Breeds Wet Dog Food, and Viva Paper Towel White Select A Size 3 Pack.

Two of those sample products, Nature’s Gift Dog Food and Viva Paper Towels, each involved two separate Down Down tickets. So the liability trial considered 14 Down Down tickets in total. The judgment also expressly states that each sample product was a manufactured and packaged grocery product and that the proceeding did not concern fresh food grocery products. That matters because the Court’s catchwords refer to the relative stability of prices for manufactured and packaged grocery products over time.

The case also had a parallel class action dimension. Benjamin Glenn Demery commenced a representative proceeding against Coles on 14 November 2024, advancing materially the same allegations and claiming damages for himself and group members who purchased one or more affected products during the relevant period. The Court managed the two proceedings together for liability purposes. Orders made in August 2025 reflected a compromise under which the class action would effectively follow the liability findings in the ACCC proceeding, subject to the procedural terms recorded by the Court. The judgment records later interlocutory steps about security for costs, opt out arrangements and an unsuccessful attempt by Mr Demery to qualify an undertaking that he and group members would be bound by the liability findings.

For business readers, the procedural point is that this was not a narrow one-off complaint about a single label. It was a regulator case, run alongside a consumer class action, concerning a broad promotional practice and tested through representative sample products.

The legal issue was whether the Down Down tickets contravened the Australian Consumer Law by being misleading or deceptive, or by making false or misleading representations with respect to price. The judgment identifies the pleaded provisions as section 18(1) and section 29(1)(i) of the ACL.

The key question was one of conveyed meaning. What would ordinary consumers understand from the tickets? The ACCC alleged that each ticket represented that the Down Down price was a genuine reduction to, or discount from, the product’s previous regular price. In the ACCC’s opening submissions, the phrase previous regular price was said to mean the price at which the product was ordinarily offered for sale for a reasonable period prior to the promotion.

Coles rejected that characterisation. It said the concept of previous regular price was unclear and that the tickets instead conveyed a narrower message: that the Down Down price was lower than the immediately preceding genuine non-promotional white-ticket price. Coles also argued that if that was the correct message, the tickets were not misleading because the was price had genuinely been used as the shelf price after supplier cost increases or changes to promotional funding.

The judgment shows that the Court approached the matter as a consumer impression case, informed by the surrounding facts. The Court also referred to general principles and dual pricing cases in the structure of the reasons. In other words, the issue was not solved by internal accounting or supplier negotiations alone. The Court had to decide what the tickets said to ordinary shoppers and whether that message was false or misleading in context.

The clearest statement of outcome appears in the catchwords. The Court found that the ticket was misleading because the discount represented on the ticket was not genuine in circumstances where the product had not been sold at the previous price stated on the ticket for a reasonable period. The catchwords also state that the product had been offered for sale at the previous price for only four weeks, in circumstances where prices for manufactured and packaged grocery products were relatively stable over time.

That is the practical centre of the decision. The existence of a higher immediately preceding price was not enough by itself. The Court’s summary indicates that, for these products and in these circumstances, a four-week period at the higher price did not make the later advertised discount genuine. The judgment therefore supports the proposition that a was-now promotion can mislead even where the higher price was real, if the overall message to consumers is that the current price is a genuine saving from the product’s earlier regular selling price and that implication is not true.

The Court’s orders also show that the matter was not fully finished on 14 May 2026. In both the ACCC proceeding and the Demery proceeding, the parties were ordered to provide agreed or competing proposed orders by 29 May 2026, with short written submissions by 5 June 2026 if agreement could not be reached. The proceedings were listed for further case management on 10 June 2026. The Court also made confidentiality-related orders restricting access to section C.6 of the reasons until further order and allowing Coles to apply for ongoing suppression of confidential financial information in that section.

So, while liability was determined, the material summarised here does not set out the final form of relief. Readers should treat the case as a liability decision with further orders to follow.

Businesses should read this case as a warning against treating previous-price advertising as a purely technical exercise. A promotion can still mislead even if the higher price was genuinely charged for a period. The real question is what the promotion conveys to ordinary customers. If the ad suggests a genuine saving from the product’s earlier regular price, the earlier price may need to be more than a short-lived step before the sale.

The decision is especially relevant where products have relatively stable pricing. The judgment itself highlights manufactured and packaged grocery products. Similar risk can arise for household goods, health products, beauty items, pet products, electronics accessories, standard apparel lines and other catalogue-style products where customers are likely to assume that a was price reflects a meaningful earlier selling price rather than a brief pre-sale increase.

It is also important that the Court referred to both in-store labels and online product tiles. Businesses should not assume that online pricing widgets, automated sale banners or marketplace compare-at fields are lower risk than shelf labels. The same overall impression problem can arise in any channel.

In practice, businesses should build a pricing review process before publishing discount claims. That process should ask whether the earlier price was genuinely available to customers, how long it was used, whether the product category usually has stable pricing, whether the current sale price is actually lower than the product’s earlier ordinary selling price, and whether the wording or design of the promotion implies a broader saving claim than the business intends. Internal reasons for the price change, such as supplier cost increases or changes to funding, may be commercially real but still not answer the consumer-law question if customers never see those internal arrangements.

The judgment was delivered on 14 May 2026 by O’Bryan J in the Federal Court of Australia. The ACCC proceeding had been commenced on 23 September 2024. The related representative proceeding by Benjamin Glenn Demery was commenced on 14 November 2024. The hearing took place on 16 to 20 February 2026 and 25 to 26 February 2026, with last submissions dated 5 March 2026.

At the time of judgment, the Court had not yet set out the final orders giving effect to the reasons. Instead, it directed the parties to submit agreed or competing proposed orders and listed the matter for further case management. The judgment also records confidentiality restrictions over part of the reasons dealing with sample products and possible ongoing suppression applications concerning confidential financial information.

That means the case should be read as a substantial liability ruling with some procedural steps still to occur after the reasons were published.