The ACCC’s win against Coles has been widely covered. The facts, the “Down Down” campaigns, and the outcome will already be familiar to most readers. What matters now is not the detail of the decision, but what it changes.
In FY27, misleading pricing is a top priority for the ACCC. As part of that focus, the regulator has made clear that promotional pricing, particularly “Was/Now” discounts, will remain firmly in its sights. The Coles decision shows that this is not about technical compliance or non-compliance. The focus is on whether a discount is real in a way that consumers would recognise.
That shifts the question for businesses. It is no longer enough to ask whether a “Was” price can be substantiated. The better question is whether the pricing approach, taken as a whole, genuinely supports the message being conveyed.
Seen in that light, the decision is not just about Coles. It is a prompt to step back and rethink how discount pricing is structured, how long prices are held, and whether reference prices will stand up to scrutiny.
ACCC v Coles
In September 2014, in the wake of the Supermarket Inquiry, the ACCC launched proceedings against Coles, claiming that its Down Down discount tickets on everyday grocery items such as toothpaste, soft drink and dog food were false and misleading. On 14 May 2026, the Federal Court found that Coles had engaged in misleading conduct in 13 of the 14 sample promotions. It closely examined the “Down Down | Up | Down Down” pricing structure to determine whether the “Was/Now” representation made in the second Down Down promotion was genuine. To do so, the Court focused on three things:
- whether the “Was” price was commercially justified,
- whether Coles had sold meaningful volumes of the products at the “Was” price, and
- whether the “Was” price had been in place for a reasonable period.
On the first two, Coles received full marks. The Court accepted that the price increases were driven by supplier cost increases and based on supplier RRPs, and that Coles had sold commercial volumes of products at those higher prices. It was on the third point where Coles came undone. The Court found that, in the context of stable pricing for packaged grocery products in a large supermarket, an ordinary consumer would typically expect the “Was” price to have been in place for around 12 weeks. Coles’ own internal pricing guardrails, which had at one point included a 12-week rule, were particularly significant in shaping that expectation. In practice, however, the “Was” price had only been applied for around four weeks or sometimes less. The Court found this was too short to establish a genuine reference price, with the result that the discounts were not genuine.
Why this matters
The key takeaway is not that a 12-week rule now applies across all sectors. Rather, the decision confirms that “Was/Now” pricing will be assessed by asking whether the discount is real in a meaningful sense. The reference price needs to be genuine, in that it is commercially justified, meaningful, in that products have actually been sold at that price, and representative, in that it has been in place long enough to be seen as the ordinary price. If those elements are not there, there is a real risk that the discount overstates the saving being offered.
Are you ACCC ready?
Over the last two years, the ACCC has been regularly policing pricing practices through targeted sweeps of major sales events such as Black Friday and Boxing Day sales. In April 2026, the ACCC reported that its 2025 Black Friday sweep had revealed concerning claims by around half of the retailers it reviewed, and that it was investigating these further. Recent enforcement action shows that misleading pricing practices remain firmly in the regulator’s sights and can result in significant penalties. In April 2026, Emma Sleep was fined $15 million for making false and misleading claims about the sale price of its products, one of the largest penalties of its kind. Off the back of its success against Coles, the ACCC is likely to push harder. For those already on its watch list, you are firmly on notice.
Top five takeaways for discount pricing
The EOFY is nearly here and Black Friday planning is already underway, so here are our top five tips for staying out of trouble:
1. Set up and follow pricing guardrails
Put clear internal rules in place to guide your teams on discount pricing. These should cover when products go on promotion and how long they stay there, as well as how discounts are described. They must be tailored to your business and must actually be followed. Coles did not do well on this, and it mattered.
2. Keep pricing records and track input costs
Maintain clear records of current and historical prices, promotions, sales volumes and supplier cost data. If you increase prices before a discount, you will need to show the increase was genuine. Coles did well here.
3. Take extra care with “Was/Now” promotions
These claims are powerful, but the “Was” price must be a genuine ordinary price over a reasonable period. What is reasonable will depend on the product, the industry and how often prices change. The 12-week period in Coles was specific to supermarkets and is not a one size fits all rule.
4. Discounts must be real
Do not use artificial or rarely charged prices to create the impression of a saving, and do not increase prices just before a promotion to make discounts look bigger. Coles was cleared on this point, but others have not been. Kogan, for example, was penalised for doing exactly that.
5. Do not oversell discounts
Headline claims must be accurate, and key exclusions must be clear and upfront. Fine print will not fix a misleading overall impression.
The Coles decision is a clear reminder that discount pricing is not a low-risk area. The focus is not just on whether a business can point to a prior price, but whether the discount genuinely reflects a saving that consumers would recognise. Businesses that get this wrong can expect continued scrutiny from the ACCC.
Need help planning your next promotion or setting up pricing guardrails? Make sure you get it right the first time by getting expert advice from the Addisons Competition/Antitrust & Consumer team.