ACCC “concerned” about misleading Black Friday advertising – don’t be on the naughty list for Christmas

You better watch out, you better not cry; get your advertising in order, otherwise the ACCC will be coming to town.

The ACCC’s sweep of Black Friday advertising has turned up several misleading advertisements – and the regulator’s sights are now set on post-Christmas sales.

One of the big issues picked up by the ACCC is “was/now” advertising that compares previous prices (“was X”) to current prices (“now Y”).  This becomes a problem where retailers jack up prices just before sales, to give the impression of a bigger discount, or in some cases any discount at all, compared to normal prices. 

This isn’t new.  The ACCC recently commenced proceedings against Woolworths and Coles for this exact conduct, alleging that their higher “was” pricing was only a short-term spike designed to create an illusory discount.  Ausnew Home Care is also facing court proceedings for its sales advertising.

So what other practices will the ACCC be looking out for?

• Claims of storewide sales (e.g. “everything 30% off storewide / sitewide”), where in fact some exclusions apply.  
• Fine print or disclaimers (e.g. member-only deals), which wouldn’t be clear to consumers looking at the headline claim.  
• Retailers using recommended retail pricing (RRP) as a basis to advertise discounts, where in fact those retailers haven’t sold the product at the RRP price recently and for a reasonable period of time.  
• Claims of “up to X% off”, but where the “up to” text is small, or few products are on sale at that rate.

Advertising sweeps are common, and many retailers have been sent a "please explain" letter to justify their claims under the cloud of potential enforcement action. As retailers gear up for post-Christmas sales, their advertising must comply with the Australian Consumer Law and the rules around misleading advertising.

Everybody loves a sale, and there’s nothing wrong with your business letting the world know about the great bargains on offer.  Just make sure you review your advertising and marketing materials (in particular, any disclaimers or qualifications to your headline sales claims) to avoid the silly season turning serious.

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