At 4.45 pm on Thursday, an online retailer changes a product from $89 to 'was $129, now $89' before an end-of-financial-year campaign. The product has never sold for $129. By Friday morning, the website is not advertising a $40 saving. It is publishing a price history that does not exist.
Under Australian Consumer Law, a discount claim must be supported by a genuine comparison. A 'was' price should be a price used for a reasonable period immediately before the sale, with more than token sales at that price. Raising a price before cutting it, using an unsold comparison price, or running a false countdown can turn an ordinary promotion into a fake discount.
A sale banner is therefore part of the product claim, not a decorative layer. The product page, email, social post, countdown, and checkout must tell the same truthful story.
A fake discount is a promotion that creates a saving which the price history cannot support. The problem is not limited to a false 'was' figure. A crossed-out price, percentage saving, site-wide banner, member offer, or 'sale ends tonight' message can all make a factual claim. If the underlying facts differ, the whole impression can mislead.
The clearest example is a product advertised as 'was $120, now $90' when it sold for $90 before the campaign. The same problem arises when $120 appeared for only a short interval and almost nobody paid it. The ACCC says a higher comparison price can mislead when it was not used for a reasonable period immediately before the sale. The same applies when only a very small proportion sold at that price.
Online design can strengthen the claim. A large saving and ticking clock can outweigh a qualification below the fold. Fine print cannot repair a false headline.
Kogan's 2018 tax-time promotion remains a clear Australian example of a price rise being used to create a discount. The campaign offered 10 per cent off with a code for four days. Before it began, Kogan increased the prices of 621 products, mostly by at least 10 per cent. Prices were reduced soon after the campaign ended.
The Federal Court found the promotion misleading and ordered Kogan to pay a $350,000 penalty in December 2020. The campaign was not confined to one web banner. It reached customers through Kogan's website, emails sent to more than 10 million subscribers, and text messages sent to more than 930,000 people.
A promotion is judged as a connected campaign. A truthful product page does not excuse a misleading email. The price record must support every place the claim appears.
The supermarket proceedings moved in different directions during 2026. On 14 May, the Federal Court found that Coles made misleading representations in 13 of the 14 'Down Down' tickets examined at the liability hearing. The wider ACCC case concerned 245 products. Penalties and other orders had not been decided when this material was checked on 17 July 2026.
The separate case against Woolworths concerns ACCC allegations about 266 products sold between September 2021 and May 2023. The Federal Court's public online file showed closing submissions in April 2026 and did not list a judgment as at 17 July 2026. Those allegations should not be written as findings unless the Court later decides the case.
The lesson is not confined to supermarkets. A discount can mislead when it follows a temporary increase and remains the same as, or higher than, the earlier regular price. One product and one campaign can create the same false comparison.
A genuine sale starts with evidence, not a banner. There is no fixed national rule saying a product must sit at the higher price for a set number of days. The ACCC says the reasonable period depends on the product, the market, and how often prices usually change. That makes a price log and sales record more useful than a rule of thumb.
The comparison also needs an accurate label. A retailer's former price differs from a manufacturer's recommended retail price. An RRP comparison may mislead if the product has never sold at that figure, or has not done so for a reasonable period.
Time and availability claims face the same test. A countdown should end with the sale. A 'site-wide' claim should not hide major exclusions, and an 'up to 50 per cent off' headline should not rest on a token handful of products.
| Website claim | More likely to hold up | Likely to create a problem |
|---|---|---|
| 'Was $120, now $90' | The item sold at $120 for a reasonable recent period, with meaningful sales at that price. | The $120 figure was invented, used briefly, or paid by only a tiny share of customers. |
| '30% off site-wide' | The discount applies broadly, with narrow exclusions clear beside the claim. | Key categories are excluded in fine print, or little of the range qualifies. |
| 'Sale ends Sunday' files | The promotion ends on Sunday and the website removes the claim. | The timer resets, the sale continues, or the same urgent offer restarts. |
| 'Members save 20%' | The membership condition is visible and the comparison price is genuine. | The headline suggests everyone qualifies while the condition is hard to find. |
| 'RRP $199, our price $149' | The RRP is current, genuine, clearly labelled, and not presented as a former site price. | The RRP is obsolete or displayed as though customers recently paid it here. |
| 'Up to 50% off' | A meaningful part of the advertised range carries strong discounts, with the spread easy to understand. | Only a token product reaches 50 per cent while the rest of the range receives little or no reduction. |
None of these examples creates a safe formula. Context still matters, and the overall impression can outweigh a technically correct fragment. The table is a campaign check, not legal advice.
A sale that holds up can be reconstructed after it ends. The business should be able to show the former price, when it applied, how many units sold, what changed, and when the promotion finished. That record also protects the marketing team from copying an old price into a new campaign without checking it.
This task cannot sit with the web developer alone. The person building the page may know today's price but lack the sales history. Responsibility for the claim stays with the business that publishes it.
The outcome can range from refunds and changed advertising to enforceable undertakings and Federal Court proceedings. In June 2026, JB Hi-Fi began refunding more than $250,000 to about 200 customers after the ACCC raised concerns about alleged 'was/now' pricing on several products. The company did not need a final court judgment for the campaign to create a direct financial and operational cost.
Court penalties can be far larger. Kogan was ordered to pay $350,000 over its tax-time promotion. In April 2026, Emma Sleep and a related company were ordered to pay $15 million in total for misleading online sale-price statements. The claims covered mattresses, bed frames, pillows, and accessories.
For conduct on or after 28 March 2026, the maximum corporate penalty for each false or misleading representation can use one of three measures. They are $100 million, three times the benefit, or 30 per cent of adjusted turnover during the breach period. This is a ceiling, not a standard small-retailer result. Only a court sets the penalty.
The next compliance problem may be generated by automation rather than a person typing the wrong number. Ecommerce systems can schedule price changes, recycle campaign templates, and reset countdowns across hundreds of products. Those features make a sale easier to run, but they also repeat a weak claim at scale.
The ACCC said in April 2026 that it was investigating several retailers after a Black Friday sweep found concerning claims at around half of the 50 retailers reviewed. The concerns included timers that did not match the real sale period, site-wide claims with exclusions, and large 'up to' discounts carried by too few products. The regulator is looking at the complete promotion, not only the price field.
Before the next ecommerce campaign goes live, review the price history, product page, banner, exclusions, email, and timer as one claim. CJ Digital can help build the page and technical controls, but the business and its legal adviser must sign off the promotion. Complex pricing, repeated campaigns, and edge cases deserve advice based on the exact facts.
There is no fixed period that applies to every product. The ACCC uses a 'reasonable period' test, which depends on the product, market, usual price changes, and the sales made at that price.
An RRP can be shown only when the comparison is genuine and clearly labelled. It may mislead when the product has never sold at that figure, the figure is obsolete, or the design makes it look like the retailer's own former price.
A sale end date should be true when published. A countdown or urgent deadline can mislead when the business plans to continue the same offer, resets the timer, or repeatedly restarts the campaign.
An 'up to' claim can be used when the headline gives a fair picture of the range. It becomes risky when only a token product reaches the maximum discount and the rest of the offer is much weaker.
Australian Consumer Law applies to promotional claims across channels. A website, email, text message, social post, and checkout should use the same accurate price, saving, conditions, and end date.
