The Australian Competition and Consumer Commission (ACCC) continues to focus on online sale and discounting tactics, particularly where they deprive consumers of the ability to make informed purchasing decisions.

While discounting is a common and legitimate practice, poorly implemented promotions may contravene various obligations under the Australian Consumer Law (ACL), including prohibitions on misleading and deceptive conduct, false or misleading representations and requirements for pricing transparency.

Common practices in the ACCC’s sights include:

• displaying a higher ‘was’ price that is not reflective of a genuine prior selling price;
• advertising percentage discounts that overstate the saving; and
• creating false urgency through countdown timers or ‘sale ending soon’ claims that reset or continue unchanged.

In this article, we examine three recent ACCC enforcement actions which illustrate a range of enforcement responses, from negotiated outcomes and refunds through to infringement notices, court proceedings and significant penalties. We consider the nature of the conduct, why the outcomes differed, and the key lessons arising.

JB Hi-Fi

The ACCC alleged that, between March and September 2025, JB Hi-Fi may have misled consumers when it advertised 17 discounted products on its website that were:

• never offered at the higher ‘was’ price;
• only offered at the higher ‘was’ price for a short period of time prior to being lowered for the sale; or
• only offered at the higher ‘was’ price long before the beginning of the promotion.

The ACCC alleged that the misleading advertised ‘was’ prices deprived customers of the opportunity to make informed purchasing decisions. This is because consumers may have decided not to buy the products had they been able to assess whether the discount was genuine.

JB Hi-Fi maintained that the ‘was’ prices were largely due to system or human errors, and that it had already taken proactive action on some products. JB Hi-Fi has also commenced the process of refunding over $250,000.00 to 206 customers.

In light of JB Hi-Fi’s proactivity in investigating and refunding affected customers, the ACCC resolved the matter without taking further formal enforcement action.

Christofi investments (ugg)

The ACCC alleged that Ugg footwear retailer Christofi Investments (Christofi) made false or misleading pricing claims when it advertised two Ugg products on the Ugg Australia Classic and Ugg Originals websites.

Like with JB Hi-Fi, the ACCC alleged that the relevant products had not been offered for sale at the higher struck-through price for a reasonable period preceding the advertising and, as a result, customers were likely to be misled into believing they were receiving a genuine discount on their purchase, when this was not the case.

In contrast to JB Hi-Fi, the ACCC issued, and Christofi paid, two infringement notices totalling $39,600.00 (without admission of liability). The ACCC also reiterated its broader position that misleading pricing harms not only consumers but also competing retailers who price transparently. Infringement notices are issued where the ACCC has reasonable grounds to believe that a contravention has occurred and provide a mechanism to resolve matters administratively without court proceedings. While payment is not an admission of liability, infringement notices carry financial and reputational consequences and are used as a proportionate enforcement response where court action is not considered necessary.

This matter illustrates that even relatively contained instances of non‑compliant ‘was/now’ or struck-through pricing can result in swift administrative enforcement action and financial penalties.

The different outcomes in JB Hi‑Fi and Christofi demonstrate that scale is not the only factor informing the ACCC’s response. While the conduct alleged against JB Hi‑Fi was broader in scope, its proactive remediation and engagement appeared to be central to avoiding formal enforcement action. By contrast, even limited instances of non‑compliance may attract infringement notices where the ACCC elects to take visible enforcement action, suggesting that factors beyond scale are relevant, including how the conduct is identified, addressed and remediated in practice.

Emma Sleep

In contrast to the two earlier examples, the Emma Sleep case shows that the ACCC is not afraid to take action and issue proceedings in serious or widespread cases. Read HWLE’s article in relation to the Emma Sleep decision here.

In short, the ACCC took action against Emma Sleep in relation to widespread online pricing practices across its product range. The ACCC alleged that:

• products had never (or almost never) been sold at a higher ‘was’ or percentage off discount price;
• countdown timers for sales campaign reset upon expiry; and
• products continued to be advertised at the discounted (or similar) price after a sales campaign ended.

What this means for businesses

The ACCC has made clear that ‘was/now’ pricing will continue to be an enforcement priority, and that online advertising is subject to the same standards and scrutiny as in-store representations. Earlier this year, maximum penalties for a significant number of ACL breaches also doubled from $50 million to $100 million (see our article here).

This recent ACCC enforcement activity reinforces that businesses need to carefully consider the basis on which discounts are represented and ensure that promotional practices can be substantiated. In particular:

• ‘Was’ prices must be genuine – this is a question of fact having regard to all the circumstances, but the ACCC is clear that the product must have been genuinely offered at the higher price for a meaningful period, sufficiently proximate to the promotion.
• Discount claims must be substantiated – Percentage or ‘up to’ discount claims should be capable of objective verification and reflect savings that are genuinely and meaningfully available across the promoted product range and not confined to a small number of discounted items.
• Urgency cues must be real – Countdown timers, ‘ending soon’ messaging and similar techniques should not reset or continue where there is no substantive change to the offer.
• Systems and processes matter – Pricing errors (whether system driven or human) may still give rise to risk.
• Identify issues and take prompt and considered action – Early detection, remediation, legal advice and cooperation with the ACCC can materially affect the regulatory outcome.

For further information

Our Consumer and Contracting Law team regularly advises on advertising techniques, promotional campaigns, and Australian Consumer Law compliance. We can assist with reviewing marketing material for promotional campaigns, particularly large scale or recurring sales events and preparing disclaimers.

This article was written by Teresa Torcasio, Partner, Alysha Schutz, Special Counsel, and Patrick Lavery, Law Clerk.