The ACCC has announced that it is taking Coles and Woolworths to the Federal Court in separate proceedings for allegedly breaching consumer law by misleading consumers through discount pricing claims on hundreds of common supermarket products.
The ACCC says that both Woolies and Coles had sold products at regular long-term prices which remained the same, excluding short-term specials, for at least six months and in many cases for at least a year.
The products were then subject to price rises of at least 15 per cent for brief periods before being placed in Woolworths’ ‘Prices Dropped’ promotion and Coles’ ‘Down Down’ promotion, at prices lower than during the price spike but higher than, or the same as, the regular price that applied before the price spike.
“Following many years of marketing campaigns by Woolworths and Coles, Australian consumers have come to understand that the ‘Prices Dropped’ and ‘Down Down’ promotions relate to a sustained reduction in the regular prices of supermarket products. However, in the case of these products, we allege the new ‘Prices Dropped’ and ‘Down Down’ promotional prices were actually higher than, or the same as, the previous regular price,” ACCC Chair Gina Cass-Gottlieb said.
“We allege that each of Woolworths and Coles breached the Australian Consumer Law by making misleading claims about discounts, when the discounts were, in fact, illusory.”
“We also allege that in many cases both Woolworths and Coles had already planned to later place the products on a ‘Prices Dropped’ or ‘Down Down’ promotion before the price spike, and implemented the temporary price spike for the purpose of establishing a higher ‘was’ price,” Cass-Gottlieb said.
The ACCC identified this conduct through consumer contacts to the ACCC and social media monitoring, and then conducted an in-depth investigation using its compulsory powers.
“Many consumers rely on discounts to help their grocery budgets stretch further, particularly during this time of cost of living pressures. It is critical that Australian consumers are able to rely on the accuracy of pricing and discount claims,” Cass-Gottlieb said.
“We allege these misleading claims about illusory discounts diminished the ability of consumers to make informed choices about what products to buy, and where.”
The ACCC estimates that Woolworths and Coles sold tens of millions of the affected products and derived significant revenue from those sales. Between September 2021 and May 2023, The ACCC alleges that Woolworths made false or misleading representations to consumers about the prices of 266 products including Arnott’s Tim Tams biscuits, Dolmio sauces, Energizer batteries and Nicorette patches.
Between February 2022 and May 2023, the ACCC believes that Coles made false or misleading representations to consumers about the prices of 245 products including Arnott’s Shapes biscuits, Band-Aids, Libra tampons and Sanitarium Weet-Bix cereal.
The ACCC alleges that the supermarkets offered certain products at a regular price for at least 180 days. They then increased the price of the product by at least 15 per cent for a relatively short period of time, and subsequently placed it onto their ‘Prices Dropped’ or ‘Down Down’ program.
The ACCC alleges the display of the Prices Dropped and Down Down tickets was misleading, as the price of the products was in fact higher than or the same as the regular price at which the supermarket had previously offered the products for sale.
While the ACCC can take Woolies and Coles to court, the ACCC does not regulate supermarket prices. Instead, it enforces the Food and Grocery Code of Conduct and the Unit Pricing Code.
