The Australian Competition and Consumer Commission (ACCC) and Coles have levelled up in the Federal Court over the ACCC’s accusation the retailer misled consumers through its “down, down” pricing program on hundreds of products.
The ACCC filed the action 16 months ago against both Woolworths and Coles, alleging they had breached Australian Consumer Law. It said the retailers took products that had a long-term unchanging price and increased their price by at least 15 per cent for a brief period of time. Then they put the products on a ‘Prices Dropped’ (Woolworths) or ‘down, down’ (Coles) promotion, dropping the price to lower than the spike but higher, or the same, as the original long-term price.
The commission said the alleged conduct involved 266 products for Woolworths at different times across 20 months, and 245 products for Coles at different times across 15 months.
Coles, the second-largest supermarket chain in Australia, operates more than 840 stores nationally. The ACCC allegations cover the prices of 245 products during the period between February 2022 and May 2023.
Products include Arnott’s Shapes biscuits, Band-Aids, Bega cheese, Cadbury chocolates, Coca Cola soft drink, Colgate toothpaste, Danone yoghurt, Dettol multi-purpose wipes, Fab laundry liquid, Karicare formula, Kellogg’s snack bars, Kleenex tissues, Libra tampons, Lurpak butter, Maggi two-minute noodles, Nature’s Gift dog food, Nescafe instant coffee, Palmolive shampoo, Rexona deodorant, Sakata rice crackers, Sanitarium Weet-Bix cereal, Strepsils lozenges, Sunrice rice, Tena pads, Viva paper towels, Whiskas cat food, and Zafarelli pasta.
The case, launched in 2024, was the culmination of a bruising year for the two retailers, with multiple enquiries – including the ACCC’s 12-month investigation into pricing – into their relationships, systems, and practices with suppliers and customers.
It could set a legal precedent for promotional pricing regulation in Australia, with greater enforcement of consumer protection laws.
The Coles case is set for 10 days of hearings, with Woolworths scheduled for April-May. The maximum expected penalty of $150 million.
