“Sale ends tonight.” “Only three hours left.” “Up to 30% off before the timer expires.”

Consumers see these messages every day. Increasingly, they are attracting the attention of the Australian Competition and Consumer Commission (ACCC) as well.

In recent enforcement action, the ACCC issued infringement notices to two online retailers, alleging they used promotional tactics that created a misleading sense of urgency around sales and discounts. The businesses, The Sleeping Giant Pty Ltd (trading as James Lane) (James Lane) and Systems Operations Pty Ltd (trading as Vuly Play Group) (Vuly), paid infringement notice amounts of $19,800 and $39,600 respectively for allegedly making misleading representations to consumers about the duration of the discounts offered during their 2025 Black Friday sales.

Although the circumstances differed, both matters involved claims about the availability and duration of promotional offers, and whether those claims accurately reflected the position presented to consumers.

The action is another example of the ACCC’s increasing focus on online retail practices and digital sales techniques that influence consumer decision-making. It is also a timely reminder that the risks associated with these practices are likely to increase once Australia’s new unfair trading practices (UTP) regime commences on 1 July 2027.

What did the ACCC allege?

“Sale ends today” … except it doesn’t.

According to the ACCC, furniture, homewares and bedding retailer James Lane advertised its Black Friday promotion using statements that represented the sale would end on 3 December 2025.

The regulator alleged that, before the promotion commenced, James Lane had already planned to continue offering those discounts beyond the advertised end date.

At the heart of the ACCC’s concerns is the possibility that representations about the end date of a promotion may influence the timing of a consumer’s purchasing decision. A consumer who believes a discount is genuinely about to end may be less likely to delay their purchase, compare competing offers, or consider whether the purchase is necessary.

Countdown clocks under scrutiny

Like James Lane, the ACCC alleged that the discounts promoted by Vuly as ending at the conclusion of Black Friday remained available beyond the advertised deadline.

However, Vuly also attracted the ACCC’s attention for a different reason.

During a Click Frenzy promotion, Vuly allegedly advertised products as being available for “up to 30% off”, alongside a countdown timer. According to the ACCC, shortly after the timer expired, the promotion was replaced with a new offer of “up to 45% off” accompanied by a fresh countdown clock. The ACCC also alleges that, during Vuly’s Black Friday promotion, products advertised as being available at up to 45% off remained discounted after the countdown timer expired and the advertised end date had passed. Unlike James Lane, the ACCC has not publicly alleged that Vuly had predetermined that its promotions would continue beyond the advertised deadline. The focus of the ACCC’s allegations appears instead to be the use of countdown timers and expiry messaging where the same or more generous discounts allegedly remained available after the expiry of the relevant countdown period.

How might these allegations engage the Australian Consumer Law (ACL)?

While the ACCC has not publicly identified the specific ACL provisions underlying the infringement notices issued to James Lane and Vuly, the allegations are consistent with conduct that may engage two important prohibitions under the ACL: the prohibition on misleading or deceptive conduct in section 18 and the prohibition on false or misleading representations with respect to the price of goods or services in section 29(1)(i).

Section 18 of the ACL prohibits businesses from engaging in conduct that is misleading or deceptive, or likely to mislead or deceive. Consumers are entitled to assume that representations about the duration of a promotion, and the need to act within a particular timeframe to obtain the advertised offer, are genuine.

Section 29(1)(i) of the ACL prohibits false or misleading representations with respect to the price of goods or services. Promotional discounts, strike-through pricing, sale periods and countdown clocks can all form part of the overall pricing representation conveyed to consumers.

Why the new unfair trading practices regime could change the landscape

The allegations against James Lane and Vuly are also noteworthy because they concern the type of online sales techniques that may attract scrutiny under the new UTP regime from 1 July 2027. As discussed in our recent article on the UTP reforms, the regime introduces a broad prohibition on unfair trading practices, including conduct that unreasonably distorts consumer decision-making. The regime also identifies as a potential UTP the creation of a consumer decision-making environment, including through digital interface design, that places consumers under unreasonable pressure when making decisions.

It is not difficult to see how the conduct alleged by the ACCC in relation to James Lane and Vuly could also be considered under the UTP framework once the regime commences. Although infringement notices were issued under the existing ACL framework, the allegations involved online sales techniques, including countdown timers, limited-time offers and sale deadlines, which may also be relevant to an assessment of whether a business has unreasonably distorted the environment in which consumers make purchasing decisions.

What the ACCC is signalling

The ACCC’s enforcement action suggests that it will continue to closely scrutinise urgency-based marketing practices, including countdown clocks, sale deadlines and limited-time offers. It also provides an indication of the types of online sales techniques that may attract scrutiny under the new unfair trading practices regime once it commences.

The key message from both the ACCC’s recent enforcement action and the incoming UTP regime is that businesses should ensure that representations about the duration, availability and value of promotional offers accurately reflect the offer being made to consumers. In assessing those representations, the ACCC is likely to focus on the overall impression conveyed by the promotion rather than any individual statement viewed in isolation.

Although the infringement notice amounts paid in these matters were relatively modest, businesses should not underestimate their significance. The ACCC frequently uses infringement notice outcomes to signal emerging enforcement priorities and communicate its expectations to market participants.

The financial amount is also only part of the story. Businesses that become the subject of ACCC investigations can incur significant management time, internal compliance costs and legal expenses, as well as the disruption associated with responding to regulatory enquiries. Public enforcement action may also carry reputational consequences, particularly where it concerns consumer-facing advertising and sales practices.

In recent years, the regulator has devoted increasing attention to online sales practices, pricing representations and digital interfaces that influence consumer behaviour. The action against James Lane and Vuly suggests that countdown clocks, sale deadlines and other urgency-based marketing techniques are firmly on the ACCC’s radar.

Businesses should therefore consider these issues whenever they promote discounted products or services, not just during major retail events such as Black Friday and Boxing Day sales. Promotional messaging should align with internal pricing and sales strategies, and any claims about the duration, availability or value of an offer should be carefully tested before publication.

What should businesses do?

The takeaway is not that businesses should avoid sales, promotional pricing or countdown clocks.
Rather, businesses should ensure those tools accurately reflect the commercial reality of the promotion.
Some practical steps include:

• ensuring promotional end dates are genuine and are not inconsistent with internal plans;
• carefully documenting decisions to extend promotions;
• maintaining records of pricing and discount histories;
• reviewing countdown clocks and other urgency-based website features to ensure they do not create a misleading impression;
• implementing appropriate approval processes for marketing campaigns, particularly during major retail events; and
• retaining internal records that demonstrate the basis on which promotional claims were made.

Maintaining these records can assist businesses in demonstrating that promotional representations were genuine and substantiated at the time they were made.

The bottom line

For many retailers, countdown clocks and limited-time offers are a routine part of online marketing. However, the ACCC’s recent action demonstrates that urgency-based selling techniques are no longer escaping scrutiny.

If a promotion says it ends at midnight, businesses should ensure it actually ends at midnight. Otherwise, the ticking clock may attract attention from more than just consumers.

How can we help?

Our dedicated consumer law team regularly advises businesses on their advertising and promotional practices, pricing representations, and digital marketing campaigns to ensure compliance with the ACL. If you would like more information about the services we can offer your business, please contact us.

This article was written by Teresa Torcasio, Partner and Andrew Frydman, Law Graduate.