Decision tightens the leash on 'was/now' tickets across Coles shelves
In Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2026] FCA 598, delivered on 14 May 2026, Justice O'Bryan of the Federal Court of Australia gave judgment on liability in a joint trial of an ACCC proceeding and a related class action concerning Coles' "Down Down" promotions.
The Australian Competition and Consumer Commission alleged that Coles engaged in misleading and deceptive conduct, and made false or misleading representations, between February 2022 and May 2023, when Coles temporarily increased the retail prices of 245 products before placing those products on "Down Down" promotions. The Down Down tickets stated the price at which the product was available during the promotion and, in most cases, a "Was" price that reflected the temporarily increased price. The Down Down prices were lower than the temporarily increased prices, but were higher than, or the same as, the price at which each product had ordinarily been offered for sale prior to the temporary increase.
In its concise statement, the ACCC alleged that the information on each ticket represented to consumers that the Down Down price was "a genuine reduction to, or discount from, the product's previous regular price". In its opening written submissions, the ACCC said "previous regular price" meant "the price at which that product was ordinarily offered for sale for a reasonable period prior to the promotion". The regulator alleged the Was price had been in effect only during a relatively short "price spike period" and did not reflect that previous regular price, in contravention of sections 18(1) and 29(1)(i) of the Australian Consumer Law. A representative proceeding commenced on 14 November 2024 by Benjamin Glenn Demery advanced materially the same allegations on behalf of purchasers of affected products. The joint liability trial concerned 12 sample products and 14 Down Down tickets.
The court concluded that the Down Down tickets conveyed a representation that Coles had reduced the price from the Was price and, implicitly, that "the reduction in price involved a real or genuine discount", and that incorporated within that notion is the idea that the previous price was one at which the product had been ordinarily offered for sale for a reasonable period. The court accepted that the price increases all resulted from supplier cost price increases and that Coles increased the prices in a commercially justifiable manner, and that Coles did not select artificially high Was prices.
In the context of manufactured and packaged grocery products sold in a large supermarket, the court held that the tickets would not have been misleading if the products had been sold at the Was price for a minimum period of twelve weeks immediately preceding the Down Down promotion. On that basis, 13 of the 14 Down Down tickets were misleading, in contravention of sections 18(1) and 29(1)(i). The ticket for the Nature's Gift Dog Food product offered at $4.50 was not misleading because it did not include a Was price.
The judgment determines liability only on the sample; penalty and damages remain to be determined, with further case management listed for 10 June 2026.
