Did Coles' famous 'Down Down' deals trick shoppers into thinking they were getting a bargain when they weren't? A high-stakes court battle is currently underway, and a federal court judge has just thrown a curveball that could change everything!
The Australian Competition and Consumer Commission (ACCC), our trusty consumer watchdog, has been making its final arguments in a major case against supermarket giant Coles. The ACCC's main accusation? That Coles deliberately misled shoppers with seemingly fantastic discounts on hundreds of products. Imagine seeing those iconic giant red hands pointing down, signaling a 'Down Down' price, only to discover it wasn't the genuine bargain you thought it was.
During the week-long trial, the ACCC laid out its case: the supermarket allegedly inflated prices for a short period, only to then slash them to a level that was still higher than the product's original, regular price. This, they claim, is how the 'Down Down' promotion was used to deceive customers.
But here's where it gets controversial...
Justice Michael O'Bryan, the judge presiding over this crucial case, decided to interrupt the ACCC's legal counsel, Garry Rich, partway through his closing remarks. Mr. Rich was passionately describing how Coles supposedly employed sophisticated 'tactics' to dupe shoppers. He painted a picture of busy shoppers, viewing grocery runs as a chore, who would naturally be drawn to the prominent red 'Down Down' ticket, believing they were snagging a great deal. "They think it's a genuine discount," he stated, emphasizing how many shoppers, from all walks of life, would trust what Coles presented to them, without delving into historical pricing or considering external factors like inflation.
But here's where it gets really interesting: Justice O'Bryan interjected, questioning the very foundation of the ACCC's case. He seemed to suggest that the consumer watchdog hadn't adequately proven the core claims it was relying on. "Neither of those representations are pleaded by the commission," the judge remarked, pointing out that if these were indeed the primary messages conveyed by the 'Down Down' ticket, then the ACCC's case might be in serious trouble. He even posed the direct question: "Doesn't the commission's case have to fail?"
Mr. Rich, however, stood his ground, asserting that he was just getting started and that the genuineness of the discount was indeed central to their argument. He believed that shoppers were attracted by what they perceived as a real saving compared to the product's usual price, not a discount that followed a temporary price hike.
And this is the part most people miss...
Evidence presented earlier in the trial revealed internal Coles documents indicating policy changes that weakened safeguards around the 'Down Down' program before the alleged misleading conduct. It was also revealed that a former manager admitted that Arnott's Shapes were placed on a 'Down Down' promotion more quickly than company rules allowed. The court even heard about a 'race to the bottom' between Coles and its rival, Woolworths, to establish higher prices for the shortest possible duration before applying a discount.
Mr. Rich urged the judge to consider not just whether Coles misled consumers about the timing of discounts against its own rules, but whether they should be held to a higher standard, especially when not actively engaged in a fierce price war with Woolworths. "What did they think was appropriate in circumstances where they weren't fighting tooth and nail with Woolworths?" he asked.
Coles, on the other hand, has refuted the claims, arguing that the 'Down Down' prices were factually correct and offered genuine discounts on the previous price. They also contended that the ACCC failed to define what a 'regular price' should be and for how long it should be offered. The trial is ongoing, and the judge's intervention has certainly added a dramatic twist!
What are your thoughts on this? Do you believe the 'Down Down' promotions are genuinely good deals, or do you feel they can be misleading? Let us know in the comments below!
