On 15 May 2026, the Federal Court of Australia handed down its judgment in the case of Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2026] FCA 598, where Coles has been held to have breached Australian Consumer Laws s18 & s29(1)(i) in its ‘Down Down’ promotion by temporarily increasing retail prices of products before placing them on Down Down promotions.
Key facts of the case:
Between February 2022 and May 2023, Coles ran “Down Down” promotions on 245 supermarket products.
The ACCC alleged Coles first increased the regular prices of products by at least 15% for a short period, then advertised them as discounted under the “Down Down” campaign.
In many cases, the promoted “discounted” price was either a) the same as the earlier ordinary price, or b) higher than the earlier ordinary price before the temporary increase. One example involved Strepsils Honey & Lemon Lozenges, which was previously sold for about $5.50, but its price was raised temporarily to $7.00, then promoted as “Down Down” at $6.00, the effect of which was that, although advertised as a discount, the sale price was still higher than the original long-term price.
Federal Court’s Findings
Justice Michael O’Bryan examined numerous sample “Down Down” tickets selected from the larger group of products, and found an overwhelming number of them were misleading.
His Honour further held the products had not been sold at the higher “was” price for a reasonable time before the discount campaign began, and concluded that Coles had engaged in misleading or deceptive conduct, and made misleading price representations under the Australian Consumer Laws.
Significance
The case is a major consumer law decision for having clarified when “was/now” discount advertising becomes misleading, and is a judicial indicator that short-term price increases followed by fake discounts is not compliant with the Australian Consumer Laws.
This not only applies to supermarkets, but commercial dealings at large, including small businesses.
Author: Shuonan ZHAO, Partner
Published by the ACCC: Court finds that Coles misled customers over ‘Down Down’ claims | ACCC