You better watch out, you better not lie … the ACCC is coming for your sales

The busiest sale period of the year is almost upon us. With businesses gearing up for Black Friday, Cyber Monday and Boxing Day sales, the ACCC is watching closely.  

Recent ACCC enforcement activity (particularly the Federal Court case against Coles and similar proceedings in train against Woolworths) demonstrates that misleading pricing practices remain a significant regulatory focus, with businesses across the retail and supermarket sectors facing infringement notices, penalties and court proceedings for promotional pricing claims. 

With the festive season sale fast approaching, now is the time for businesses – both retailers and suppliers – to make sure their pricing practices are compliant. 

What are misleading pricing practices?  

The Australian Consumer Law prohibits businesses from making false or misleading representations about the price of goods or services. Businesses must clearly and accurately communicate the price of their goods or services and must not mislead consumers about their prices.   

Examples of misleading pricing practices include: 

• component or ‘drip’ pricing: not prominently displaying the total price as a single price. The single price must include any tax, duty, fee, levy or other additional charges such as GST or mandatory booking fees; 
• multiple pricing: displaying different prices for the same item;  
• two-price comparison advertising: comparing the current price of a product to a previous price (ie ‘was/now’ or ‘strikethrough’ pricing), ‘cost’ or ‘wholesale’ price, competitor’s price or the recommended retail price in a way that mislead consumers about the savings being achieved; and 
• bait advertising: offering items for sale at low prices or for a limited time to attract consumers to a business. Although bait advertising can be a legitimate form of advertising, it is illegal when it is misleading. For example, advertising products at a discounted price without a reasonable quantity available for a reasonable period or advertising a sale as ‘today only’ when the sale extends beyond this period. 

What did the ACCC’s Black Friday pricing sweeps reveal?  

In 2024, the ACCC conducted its first Black Friday sweep and found several concerning practices across retailers including: 

• claims of store or sitewide sales when the sales involved exclusions; 
• fine print disclaimers that seek to limit headline claims about the sale including member-only deals or excluding a range of products; 
• misleading ‘was/now’ or ‘strikethrough’ pricing where the business had not sold the product at the ‘was’ or ‘strikethrough’ price for a reasonable period of time prior to the sale; 
• misleading ‘up to X% off’ where the ‘up to’ text is not prominently displayed or where few products were at the top range of the X% off. 

As a result of this sweep, businesses such as Michael Hill, My House and Hairhouse online all paid penalties for making false and misleading representations about their Black Friday Sales.  

The ACCC conducted another sweep for the 2025 Black Friday sales and commenced an investigation into several retailers after the sweep revealed that over half of the 50 retailers reviewed had made concerning claims in their Black Friday sales advertising. As a result of this investigation, James Lane and Vuly were both recently ordered to pay penalties for misleading consumers in relation to the duration of their discounts during the 2025 sales.    

What we learned from the Coles case and ‘was/now’ pricing 

Perhaps the most noteworthy ACCC action this year was its win against Coles in the Federal Court. 

Earlier this year, the Court ruled that Coles had misled shoppers through its ‘Down Down’ campaign by advertising illusory discounts on 245 products. The Court found that Coles had sold the products at the ‘was’ price for periods as short as 4 weeks before promoting those prices as discounted. In finding that the higher prices had not been established for a reasonable period, the Court noted that Coles’ own internal promotional guardrails had previously required a price establishment period of 12 weeks before any subsequent discount could be promoted. Those guardrails had later been reduced to 4 weeks. 

Importantly, businesses should not read the decision as establishing a universal 12-week rule for ‘was/now’ pricing. Rather, the key question is whether the higher price genuinely represents the ordinary selling price of the product such that consumers would reasonably regard the advertised discount as real. What constitutes a ‘reasonable period’ will depend on the circumstances, including the nature of the product, the relevant market, the frequency with which prices ordinarily change and, potentially, the business’ own pricing practices and policies. 

Similar issues have also led to enforcement action against other retailers. The JB Hi-Fi Group and digiDirect were recently penalised for advertising products as discounted from higher prices when those products had rarely been advertised or sold at the higher prices. 

Why suppliers and brand owners should care 

While ACCC enforcement action often targets retailers, manufacturers, suppliers and brand owners should also review the pricing and promotional claims they provide to retail partners. 

Suppliers frequently contribute catalogue copy, promotional assets, recommended retail pricing information and discount messaging used in retail campaigns. If those materials contain misleading pricing claims, both retailers and suppliers may face regulatory scrutiny. 

Businesses should ensure any reference pricing, savings claims or promotional messaging supplied to retailers is accurate, adequately substantiated and consistent with the Australian Consumer Law. 

A timely reminder for businesses 

As businesses prepare for end-of-year sales, pricing claims should be carefully reviewed before launching promotional campaigns. In particular, businesses should: 

• ensure any advertised ‘was’ price reflects a genuine selling price that customers have actually paid for a reasonable period before the promotion commenced; 
• verify that any percentage discount or savings claim can be substantiated; 
• carefully review ‘up to X% off’ promotions to ensure the highest advertised discount is genuinely available across a meaningful range of products; 
• ensure exclusions and qualifications are prominently displayed and do not contradict headline promotional claims; and 
• review any automated or dynamic pricing practices to ensure discount claims remain accurate throughout the campaign. 

The ACCC’s recent enforcement activity demonstrates that pricing claims remain an area of significant regulatory focus and that no business, regardless of size, is immune from scrutiny.