From Singapore: Australia's supermarket pricing battle has taken a sharper legal turn, with the consumer watchdog delivering pointed closing arguments to the Federal Court this week, accusing Coles of deliberately engineering fake discounts and dressing them up with one of retail's most recognisable slogans.
The Australian Competition and Consumer Commission argued in its closing submissions that the supermarket chain's "down down" campaign, first rolled out in 2010, was not a genuine price reduction programme but a calculated strategy to create the impression of falling prices while costs were in fact rising.
Senior counsel Garry Rich, appearing for the commission, told Justice Michael O'Bryan that the phrase "down down" carried real and specific meaning for consumers. "When consumers hear the words 'down down', they don't think that's a meaningless phrase," he said. "They think it means something, and what they think it means is that the price of this product has gone down."
The ACCC's case rests on what it describes as a systematic pattern across thousands of everyday items. The commission alleges Coles raised prices on products before marking them down to levels at or above the original shelf price, repeating this cycle over a 15-month period. One example cited in court involved a jar of Coles-brand quince paste, whose price was lifted from $3 to $4.50 for four weeks before dropping to $3.15, which was then promoted as a "down down" discount. Rich argued four weeks was not a credible establishment period for $4.50 to be treated as the legitimate benchmark price.
Rich also offered the court a portrait of the typical supermarket shopper: time-pressed, often managing children, moving quickly through the aisles, and not in a position to scrutinise price histories. "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."
Coles has pushed back firmly. The company argued that its "down down" prices represented genuine savings for shoppers after wholesale costs rose sharply during the post-COVID inflation surge. Its counsel maintained the discounts were "fair dinkum" reductions and that reasonable consumers understood the campaign in that spirit. Justice O'Bryan himself queried whether time-poor shoppers might interpret "down down" as a broader, generic signal about pricing rather than a specific promise about any individual product's price history.
That is not a trivial point. Promotional language in retail has always occupied a grey area between marketing shorthand and consumer representation. The question before Justice O'Bryan is ultimately one of intent and effect: whether Coles' conduct crossed the line from aggressive promotion into misleading conduct under Australian consumer law. The Australian Consumer Law prohibits conduct that is misleading or deceptive, but courts have historically required a fairly direct connection between a representation and consumer misunderstanding.
Rich did not shy away from the competitive context. He argued that rivalry between Coles and Woolworths had contributed to a race to the bottom in promotional ethics, with each chain adjusting its standards in response to the other's tactics. "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," he told the court.
Australia's grocery duopoly has faced sustained public and political scrutiny over the past two years, including a major ACCC inquiry into supermarket pricing that examined competition, pricing transparency, and supplier treatment. That broader inquiry found the market lacked genuine competition in many respects, lending added weight to cases like this one.
Proponents of stronger consumer protection argue this case illustrates precisely why independent regulatory oversight matters. When two dominant retailers control the overwhelming majority of grocery spending, individual shoppers have limited alternatives and limited information, making them especially vulnerable to promotional practices that exploit cognitive shortcuts. The ACCC's role in calling out such conduct is, on this view, a necessary check on private market power.
The defence case is not without merit, however. Retailers operate in a genuinely volatile cost environment, and the post-pandemic period saw real and sustained inflation in supply chains. If wholesale costs rise sharply, a temporary price increase followed by a partial reduction can represent a genuine effort to absorb costs rather than a cynical manipulation of the price baseline. The difficulty is proving which motive prevailed, and whether the consumer impact was material regardless of intent.
The case continues before Justice O'Bryan. A decision is expected to clarify how Australian courts interpret promotional obligations under consumer law, with potential implications for the entire retail sector. For consumers, the case is a reminder that the ACCC remains willing to test the limits of what counts as fair dealing at the checkout, even when the conduct in question has been hiding in plain sight for years.