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Rich highlighted a case where the cost of a Coles-brand quince paste rose from $3 to $4.50 for a brief period of four weeks, only to drop to $3.15 afterward.
He contended that a four-week duration was insufficient for $4.50 to be genuinely regarded as the regular price.
“When consumers hear ‘down down,’ they don’t perceive it as a meaningless slogan,” he explained to Justice Michael O’Bryan.
“They assume it implies that the product’s price has decreased,” he added.
In court, Coles defended its pricing campaign, asserting that customers recognized them as genuine price cuts.
In his summary, Rich painted a picture of the average consumer, saying that grocery shopping was a chore for most.
“There must be very few people who shop for groceries for fun,” he said.
Customers were often in a hurry, shopping for many different products on the same visit, Rich added.
“Many are travelling through the aisles of Coles with children in tow, perhaps hanging off the trolley begging for ice cream,” he said.
“They see a big red and white ticket and read that the price is ‘down down’ … many of them will have no idea that the price was actually lower four weeks ago.”
Justice O’Bryan queried whether time-poor consumers might take the meaning of “down down” to be simply a generic statement for prices as a whole.
But Rich countered by saying that “down down” immediately implied that there used to be a higher price.
“The better standard, if one is going to use Coles’ standards as a guide, is what did they think was appropriate in circumstances where they weren’t fighting tooth and nail with Woolworths, where they weren’t concerned that Woolworths had thrown out the rule book,” he said.
The commission alleges the supermarket giant deliberately raised prices on thousands of everyday items before offering discounts at prices higher than or equal to the original shelf price throughout a period of 15 months.
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