Was/Now Pricing – When Is It Misleading?

Often retailers will advertise products for sale by showing a "was" price and comparing that price to the "now" price or "reduced price" in order to demonstrate how much a consumer will save by purchasing the product during the sale period.

Depending on the facts, was/now pricing may constitute an offence under section 75AZC(1)(g) of the Trade Practices Act 1974 ("TPA") which provides that it is an offence for a corporation, in trade or commerce, in connection with the supply of goods or the promotion of the supply of goods, to make a false or misleading representation about the price of goods.

Previous position

It has previously been thought that the Full Court of the Federal Court of Australia's ("Full Court") position on was/now pricing was that a "was" price was likely to be understood by consumers as a representation as to the price that the product was originally "offered" for sale, rather than the price at which the product had actually been sold (ACCC