Mackay Chapman ACCC May Update
ACCC BLOG:
In this month’s ASIC update:
- Coles goes ‘Down Down’ - Federal Court finds Coles made false or misleading representations in its 'Down Down' promotions
- Emma Sleep fined $15 million over misleading sales advertising
- ACCC raises concerns over consumer guarantee compliance in electronics sector
- Epic Games v Apple could reshape Australia’s app marketplace
- Competition law reforms key for economic growth and digital markets
Read more below.
Coles goes 'Down Down'
The Federal Court has found Coles made false or misleading representations in its 'Down Down' promotions. The decision was delivered by Justice O'Byan earlier today.
Given Coles' position as one of the two dominant parties in Australia's supermarket duopoly, the prominence and reach of the 'Down Down' promotions (millions of Australian are arguably misled), current and recent cost of living pressures and pending litigation against Woolworths, it is arguably one of the most significant consumer protection decisions of recent times.
At the heart of the Federal Court decision was the time a number of products were available at their 'regular' or 'white ticket' price. For example, in March 2023 Coles offered Karicare baby formula for a 'Down Down' price of $21.00 and a 'Was' price of $24.00. The Court found that there was a reasonable commercial basis for the white ticket price of $24.00, being the suppliers recommended retail price.
The problem was the item had only been at $24.00 for 23 days. In the Court's view this was a materially shorter period than what would justify the 'Was' price in the promotion.
The ACCC will be considering the size of penalties it will seek. They can be expected to be substantial. Coles will be closely considering appealing.
Emma Sleep fined $15 million over misleading sales advertising
The Federal Court has ordered mattress retailer Emma Sleep to pay $15 million in penalties after admitting to misleading consumers about product discounts and limited-time sales.
The ACCC alleged the company advertised inflated prices and exaggerated savings claims across mattresses, bed frames and accessories, despite many products rarely (or never, in some cases) being sold at the prices displayed.
The Court also found Emma Sleep used countdown timers and “Ending Soon” messaging that created a false sense of urgency, even when the same discounts continued after the promotions supposedly expired.
ACCC raises concerns over consumer guarantee compliance in electronics sector
The ACCC has warned electronics and whitegoods retailers to improve compliance with Australian Consumer Law obligations after receiving a sharp increase in complaints relating to consumer guarantees.
Reports to the regulator rose by 20% in 2025, with the electronics and whitegoods sector generating the highest number of complaints overall.
Within those complaints, consumers reported difficulties obtaining refunds, repairs or replacements for faulty products, even where they may have been legally entitled to a remedy.
The ACCC said some businesses were incorrectly directing consumers to manufacturers, relying on no-refund policies, or refusing assistance once a manufacturer’s warranty had expired.
Epic Games v Apple case could reshape Australia’s app marketplace
The ACCC has been granted permission to intervene in the ongoing Epic Games v Apple Federal Court proceedings, which concern the appropriate remedies following findings that Apple misused its market power in Australia’s app marketplace.
The case stems from allegations that Apple restricted alternative app distribution channels and in-app payment systems on its devices, limiting competition in digital markets.
The ACCC described the matter as significant for Australia’s digital economy, with potential implications for app developers, payment providers and consumers. The remainder of 2026 and beyond will see an overall focus on stricter regulation of major digital platforms.
Competition law reforms key for economic growth and digital markets
In a recent keynote speech, ACCC Commissioner Luke Woodward reinforced the regulator’s view that strong competition laws are essential to improving productivity, innovation and long-term economic growth in Australia.
Mr Woodward highlighted concerns surrounding increasing market concentration, as well as declining competition across the economy.
Effective competition law enforcement remains critical to preventing anti-competitive conduct and ensuring markets continue to deliver better outcomes for businesses and consumers.
Find the full speech transcript here.
The contents of this article do not constitute legal advice and it is not intended to be a substitute for legal advice and should not be relied upon as such. It is designed and intended as general information in summary form, current at the time of publication, for general informational purposes only. You should seek legal advice or other professional advice in relation to any particular legal matters you or your organisation may have.
