Court finds 13 of 14 Coles Down Down tickets misled, and points to 12 weeks as the test

The Federal Court's finding against Coles Supermarkets Australia Pty Ltd on 14 May 2026 established liability, not a penalty. The number that will shape supermarket pricing is neither: it is twelve weeks.

The Australian Competition and Consumer Commission alleged that across approximately 245 products, between February 2022 and May 2023, Coles raised the shelf price by at least 15 per cent, held it there briefly, then advertised a Down Down price that was at or above the product's earlier regular price. The case was heard over ten days from February 2026 before Justice Michael O'Bryan in Melbourne. Judgment was delivered as Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2026] FCA 598.

Twelve sample products went into evidence, producing fourteen tickets, because two products were promoted twice. The court found thirteen of the fourteen conveyed false or misleading price discount representations. The one exception, according to the ABC's report of the judgment, was a Nature's Gift dog food ticket that displayed no previous price for comparison.

The reasoning is where the commercial consequence sits. Justice O'Bryan wrote that the Down Down tickets were misleading because the sample products had not been offered for sale by Coles at the was price for a reasonable period. He then gave that abstraction a figure by reference to Coles' own documents. Until early 2022 the retailer's internal policy required a product to have been sold at the higher price for at least twelve weeks before it could go into a Down Down promotion. The judge reasoned that consumers would not regard a discount as genuine if told the regular price had applied for a period materially shorter than twelve weeks. In the sample, the higher price had typically applied for about four weeks.

That is not a statutory rule and it is not a declaration of general application. It is a judicial view about what an ordinary shopper would understand, anchored to a retailer's own historical standard. It nonetheless gives every supermarket, and every retailer running was and now advertising, a benchmark that did not previously exist in Australian law, and it came from the retailer's own compliance policy rather than from the regulator.

One concrete example ran through the hearing. A 1.2 kilogram can of Nature's Gift dog food had sold at $4 for 296 days. The price went to $6 for seven days. It was then promoted at $4.50, which is 13 per cent above the price at which it had sat for most of the previous year.

Coles, in a statement about itself, rejected the characterisation that it set out to deceive. Its counsel argued at the hearing that shoppers understand prices move in an inflationary environment and that the increases reflected natural market forces. After the judgment the company said the price increases resulted from supplier cost price increases and were commercially justifiable. Those are the company's positions, not findings of the court.

ACCC chair Gina Cass-Gottlieb said the regulator brought the case in the public interest because it considered Coles' pricing practices within the Down Down program made it harder for customers to identify genuine value.

Three things are unresolved. The first is the penalty: Justice O'Bryan will determine penalties and other orders at a later hearing, and no figure has been indicated. The second is the parallel proceeding. The ACCC also sued Woolworths over its Prices Dropped promotions, covering 266 products between September 2021 and May 2023, where the temporary price increases averaged 45 days or less. That case was heard by the same judge and judgment is reserved. If the twelve week reasoning carries across, the Woolworths conduct sits well inside it.

The third is consumer recovery. A civil penalty is paid to the Commonwealth, not to shoppers. A class action seeking compensation for consumers over the relevant period has been commenced, and its outcome is independent of the ACCC proceeding. How many of the 245 products, beyond the twelve sampled, were promoted in the same way has not been determined by any court.