Share and Follow
Coles has stood by its “down down” promotion, asserting that shoppers recognize these as genuine price cuts.
In a statement to the Federal Court today, the retail behemoth argued that consumers perceive these deals as actual price reductions, while criticizing the consumer watchdog for overestimating the complexity of customers’ thought processes.
Currently, Coles is contesting allegations from the Australian Competition and Consumer Commission. The watchdog claims the company misled consumers by initially inflating prices before lowering them, thereby falsely suggesting that customers were receiving a discount.
John Sheahan KC, the attorney representing Coles, highlighted two pivotal questions in the legal battle: what messages the price tags communicated to customers and whether those messages were deceptive.
“An average, reasonable shopper wouldn’t focus on how long the previous ‘was’ price had been in effect,” Sheahan remarked.
“What they would be concerned with when they’re walking down the aisle trying to work out what to buy today for their shopping is whether the claimed discount was … fair dinkum.
“So long as the ‘was’ price is a genuine price, not contrived or ephemeral, then the consumer’s interest is appropriately satisfied.”
Sheahan accepted Justice Michael O’Bryan’s proposition that an ordinary consumer would consider the “down down” campaign to be a promotion.
“I think I can take this as general knowledge, that as you walk down an aisle in a supermarket, and you see different coloured labels, and the fact that a label hangs out lower … it’s a discount of some kind,” Justice O’Bryan said.
Sheahan said the ACCC’s case was “too complex to credibly attribute to an ordinary, reasonable consumer walking down an aisle of Coles”.
It was a genuinely unusual feature of the case that the regulator was attributing “sophisticated thought processes to the ordinary, reasonable consumer”, he added.
“Normally, it’s the advertiser says, ‘oh, well, you know, the consumer could see through that, they take this into account, they’d understand.’ But this is the other way around.
“There are layers and layers of indeterminacy in what they attribute to the ordinary, reasonable consumers’ understanding of this very simple ticket.”
Justice O’Bryan said it seemed the task for the court was to simply to conclude what was conveyed and if it was misleading.
Sheahan said grocery prices often fluctuated, particularly during periods of high inflation, such as 2022 and 2023.
“In the end all prices are temporary – nothing lasts forever,” he said.
NEVER MISS A STORY: Get your breaking news and exclusive stories first by following us across all platforms.