Running a sale lawfully: was/now pricing, comparison claims and the evidence to hold

The rule behind every sale claim

A savings claim is a representation, and it must be true when it is made and capable of being proved afterwards.

There is no separate "sale advertising code" in Australia. Discount advertising is governed by the general prohibitions in the Australian Consumer Law on misleading or deceptive conduct and on false or misleading representations with respect to the price of goods or services. Our explainer on sections 18 and 29 of the ACL sets out how those two provisions differ and who can enforce them.

The practical test the ACCC applies to two-price comparison advertising is whether consumers are misled about the savings actually available. A discount is real if the consumer genuinely saves against a price the product was genuinely sold at. Everything below is an application of that single idea.

Was/now and strikethrough pricing

A was/now or strikethrough price is misleading unless the product was actually sold at the higher price for a reasonable period immediately before the sale.

The ACCC identifies four ways businesses fail this test (ACCC, checked August 2026):

• The product was never sold at the strikethrough price. The "was" price is aspirational rather than historical.
• It was not sold at that price for a reasonable period immediately before the sale started. A price that stood for two days before a month-long sale does not support the comparison.
• Only a very small proportion of items were sold at that price. Technical availability at a price nobody paid is not a genuine prior price.
• The sale price is extended indefinitely. If the "now" price runs long enough, it becomes the normal selling price and the comparison stops being true.

The ACL does not fix "a reasonable period" as a number of days. It is assessed against the product, the sales cycle and the market. That is not a licence to guess: it is a reason to hold the sales data that shows what the prior price actually was and for how long it applied.

Two further traps recur in practice. A perpetual sale — where a product is on promotion more weeks than it is off — cannot support a was/now claim, whatever the price file says. And a countdown timer that resets when it expires misrepresents the availability of the offer independently of whether the price itself is genuine.

Recommended retail price comparisons

Comparing your price to a recommended retail price is misleading where the product was never sold at that RRP, or was not sold at it for a reasonable period immediately before the sale.

The RRP problem is structurally different from the was/now problem. With was/now, you are representing your own prior price. With RRP, you are representing a market price. The claim implies the RRP is a price a consumer could realistically have paid somewhere, recently.

Before running an RRP comparison, be able to answer:

• Did we ever sell at the RRP, and if so when and how many units?
• Is the RRP current, or is it a legacy figure from a supplier price list?
• Is the product actually sold at that RRP anywhere in the market?
• Are we comparing like with like — same model, same configuration, same inclusions?

If the honest answer to the first three is no, the comparison should not run. A supplier-provided RRP is not a defence if the product has never realistically traded at it.

Storewide, percentage-off and limited-time claims

A "storewide" or "X% off all products" claim with excluded brands buried in the fine print may be misleading, even if the exclusions are technically disclosed.

The ACCC's guidance gives that scenario directly: an advertisement stating a discount promotion is storewide or X% off all products, with excluded products or brands mentioned only in fine print, may be misleading. The dominant impression created by the headline is what matters; a qualification that a reasonable consumer would not read does not cure it.

The same reasoning applies to three other common constructions:

• "Up to X% off." Lawful only if a meaningful range of stock is genuinely available at the top discount. If two items out of four hundred are at 70% off and the rest are at 10%, the headline misleads.
• "Limited time only." The offer must actually be limited. Rolling an end date forward repeatedly, or resetting a countdown, misrepresents scarcity.
• "Lowest price" and "best price" claims. These are objectively testable and will be tested. Hold the comparison data.

The evidence you must be able to produce

You should be able to demonstrate, from your own records, that every price claim was true when it was made.

The ACCC's general guidance to businesses is to be prepared to prove claims and to back assertions with facts and evidence. The Commission also has a substantiation notice power: it can require a business to give information or produce documents that could be capable of substantiating a claim, and failing to respond to a substantiation notice, or giving false or misleading information in response, is itself subject to infringement notices (ACCC fines and penalties, checked August 2026).

The records that answer a substantiation notice in a discount matter are:

Retain these for the period your regulator and record-keeping obligations require, and keep them retrievable by SKU and by campaign. A discount matter is almost always won or lost on price history data, and businesses that cannot reconstruct their own price file are in a weak position from the outset.

What enforcement looks like

Discount pricing is one of the most consistently penalised areas of Australian consumer law, and recent penalties are in the millions.

In April 2026 the Federal Court ordered Emma Sleep Pty Ltd and Emma Sleep Southeast Asia Inc to pay a total of $15 million — $7.5 million each — for false or misleading representations about the sale prices of mattresses, bed frames, pillows and accessories. The companies advertised all 74 of their products with a strikethrough price and a percentage discount, but 58 of those products had not previously been for sale at the strikethrough price or without the discount or savings, and a further 16 had almost never been for sale at the strikethrough price. Emma Sleep also used a countdown timer that would reset during a sale campaign, misrepresenting that the discount prices were available for a limited time. The Court ordered corrective notices and a compliance programme (ACCC media release, checked August 2026).

Earlier, the Federal Court ordered Dell Australia to pay $10 million over misleading strikethrough prices for add-on computer monitors sold with desktops and laptops, where discounts were overstated and consumers were often charged more than the standalone price. More than 5,300 monitors were sold with overstated discounts, and the Court ordered refunds, corrective notices, a compliance programme review and a costs contribution (ACCC media release, checked August 2026).

Not every matter ends in court. In one was/now matter the ACCC accepted an administrative resolution under which the retailer refunded affected consumers, after allegations that products were promoted as discounted from a higher price when they had either never been offered at that price, or offered at it only briefly or long before the promotion (ACCC media release, checked August 2026).

For conduct on or after 28 March 2026, the maximum penalty for a corporation is the greater of $100,000,000, three times the reasonably attributable benefit, or 30% of adjusted turnover during the breach turnover period; for an individual it is $2,500,000. Misleading pricing practices in the supermarket and retail sectors are also among the ACCC's compliance and enforcement priorities for 2026-27.

A pre-sale compliance checklist

Run this before the campaign goes live, not after a complaint arrives.

1. Pull the price history for every SKU in the promotion and confirm the "was" price applied for a reasonable period immediately beforehand.
2. Check unit sales at the prior price. A price nobody paid will not support the comparison.
3. Audit for perpetual discounting. Any SKU on promotion for most of the last year should be removed from was/now treatment.
4. Verify every RRP against a current source and against actual market pricing.
5. Move exclusions out of the fine print and into the headline claim where they materially qualify it.
6. Set a real end date and do not extend it. Disable any countdown that resets.
7. Confirm the advertised price complies with the single price rule — unavoidable fees belong inside the figure. See component pricing and drip pricing.
8. Brief paid creators on disclosure and on the price claims themselves. See our explainer on influencer marketing disclosure and the influencer disclosure obligation.
9. Check origin and quality claims used alongside the discount, including country of origin labelling.
10. Archive the creative and the approval trail, then run the campaign through the marketing compliance check.

Remember that a discount does not reduce a consumer's statutory rights. Goods bought on sale carry the same consumer guarantees as goods bought at full price, and "no refunds on sale items" is unenforceable to the extent it purports to exclude them. Size your exposure with the penalty estimator and see the marketing and communications topic hub for the surrounding rules.

This article is a reference summary, not legal advice. Confirm current requirements with the ACCC before running a campaign.