2 weeks ago
2
February 17, 2026 — 5:00am
When is a sale not a sale?
This apparently simple question is at the heart of a blockbuster legal trial that started in Melbourne on Monday and has the potential to affect grocery prices for Australian shoppers.
Lawyers for the Australian Competition and Consumer Commission have taken on supermarket giant Coles in the Federal Court in a far-reaching court battle over alleged “illusory” discounts on a range of household goods.
The dispute centres on the “Down Down” marketing slogan at the heart of Coles discount marketing campaign and asks, are these prices really lower or is there more cynical manipulation going on behind the scenes?
In preparing its case, launched in 2024, the watchdog gathered evidence of 245 products’ prices over 15 months. Of those, it argues they were offered at one price for a median period of a year before being increased to a higher price for a median of 28 days. They are then reduced to a third “down down” price – which was higher or equal to the first price.
Coles rejects that this constituted misleading conduct, and says the “down down” prices were a genuine discount after suppliers had increased their costs.
In one example tendered in documents and discussed in court, ACCC said Shapes crackers were sold for $5 a packet in 2021, then were jacked up as high as $6.50 before being pulled back to $5.50 on a Coles promotion.
The ACCC, which has launched a similar case against Woolies, brought its action after a concerted consumer-led campaign questioning the genuineness of discounts offered by the supermarket giants.
As our business columnist Elizabeth Knight so succinctly puts it, “Brand and trust are as much on trial here as anything else.”
Part of the problem for the ACCC in proving their case is the fact that supermarket pricing involves a sophisticated and fluid variety of factors across a whole range of products.
As Knight points out, supermarkets can legally ask whatever prices they want, so this action is not about price gouging. Rather it is about whether discounts are genuine or a part of a sophisticated marketing tool that fools us into believing we are receiving value.
The regulator wants Woolworths and Coles to pay penalties of up to $50 million for each breach, if proved, or 30 per cent of the turnover when those breaches happened, so the financial stakes are huge.
But beyond the financial penalties, the real battle here is for the trust of Australian consumers, who are already suspicious of the behaviour of the retail giants and are struggling to deal with a cost of living crisis and potentially rising interest rates.
Appearing at various parliamentary inquiries over recent months, Coles and Woolworths, who hold an almost 70 per cent combined share of the $133 billion grocery market, have been quick to point to generally higher costs as the reasons prices are rising.
Australian consumers will be watching closely the outcome of this trial – and be sure to punish the retailers if they are found out to be fibbing.
Get a weekly wrap of views that will challenge, champion and inform your own. Sign up for our Opinion newsletter.
