Australia: Was $49.95, now.... is misleading: the perils of "was/now" pricing

Last Updated: 28 December 2016
Article by Peter Sise

Don't use "was/now" pricing if a single price has not been consistently used.

Boxing Day has nearly arrived. The customary ways to pass the day include watching cricket, regretting the culinary excesses of the previous day or shopping at the Boxing Day sales for items you wanted for Christmas but weren't actually given. Those who are particularly committed to the festive season might manage all three. If you do find yourself at the Boxing Days sales, you're likely to be looking for marked-down prices. Marked-down prices can give rise to some complicated legal issues if they take the form of "was/now" pricing.

What is "was/now" pricing?

Broadly speaking, "was/now" pricing is when a product is advertised with two prices: a higher price marked "was" and a lower price marked "now".

There are many variations to this format. For example:

  • the words "was" and "now" may be omitted and the higher price may just have a line through it; or
  • the word "was" may be omitted and the word "sale" may be used instead of "now".

Whatever the precise format, the advertisement's intent is to convey to consumers that a product is now being offered for a lower price than it previously was, and encourage them to buy the product now rather than later.

"Was/now" pricing under the Australian Consumer Law

The main issue with "was/now" pricing is the potential for consumers to be misled. This could result in a breach of the prohibition on misleading or deceptive conduct in section 18 of the Australian Consumer Law or of the prohibition on false or misleading representations with respect to price in section 29(1)(i).

These are not the only issues that could arise. For example, there may be a breach of the prohibition on "bait advertising" in section 35 if a retailer is unable to supply the product at the "now" price for a reasonable period of time and in reasonable quantities.

Not sold at the "was" price

"Was/now" pricing may be misleading if the product was not sold at the "was" price at significant quantities for a reasonable period immediately prior to the launch of the "was/now" advertisement. This may occur if the product was actually sold beneath the "was" price.

If the product was offered for sale at the "was" price for a reasonable period immediately prior to the launch of the advertisement but no sales actually occurred, the use of that price in "was/now" advertising may not be misleading, provided the product would have been purchased at that price had someone hypothetically purchased it. If the offered price was actually a starting point for negotiations between the retailer and customers and may have resulted in a lower price being paid by customers following negotiations, the "was" price could be misleading.

Never offered for sale at the "was" price

If the product was not offered for sale at all during a reasonable period prior to the launch of the advertisement, it would be misleading to use a "was" price for that product since it was never offered or sold at all let alone at a particular price.

On sale for a reasonable period before the advertisement

What is a reasonable period prior to the launch of the advertisement? There is no single answer to this question. Periods of 2 months, 4 months and 11 months have been used. The answer depends on factors such as how long it takes "to obtain an understanding of the sales history of the item" and how often the retailer conducts sales. In relation to the latter point, a sales period may distort the normal price for a product and hence the reasonable period should perhaps not extend back so far as to include a previous sales period.

When the "ticketed" price and sale price are different

Things become complicated if the price at which the product was offered for sale (ie. the "ticketed" price) and the price at which it was actually sold are different.

The ticketed price and sale price may be different if the retailer provides discounts from the ticketed price due to a policy of price matching its competitors or if the offered price is a starting point for negotiating a final price. Which price may be used as the "was" price: the ticketed price or the sale price? This issue was considered in Jewellery Group Pty Ltd v ACCC [2013] FCAFC 144.

Jewellery Group Pty Ltd operated the Zamel's jewellery business, which released catalogues advertising "was/now" pricing for 44 items. The ACCC alleged that the advertisements were misleading because there were no sales of the items, or a very small percentage of sales, at the "was" price in the four months before the sale period.

Zamel's position was that the "was" price would be regarded by consumers as the price at which Zamel's offered to sell the items and not the price consumers would have ultimately paid. Since Zamel's had a policy of "price matching" its competitors and allowed customers to negotiate discounts, customers often paid less than Zamel's initial, offered price.

At first instance, Justice Lander concluded that the "was" price would be understood by consumers as "a price at which the items could be purchased, not an offer price." His conclusion was upheld following an appeal brought by Zamel's. On appeal, Justice Katzmann put the point quite clearly saying "[i]t defies common sense to conclude that ... customers ... would regard the ... 'was' figure as anything other than the price at which the jewellery had been sold ... Prospective purchasers are interested in the difference between the pre-sale and sale prices; a difference in the value of offers is meaningless to them."

Making a valid "was/now" price claim

When deciding whether to use "was/now" pricing, a retailer should carefully review what prices it has sold a product for immediately prior to the proposed sale period. It's unadvisable to use "was/now" pricing if a single price has not been consistently used.

If a decision is made to use "was/now" pricing, records should be kept of how long the product was offered for sale at the "was" price, what other prices were offered during that period, how many sales were made at the "was" price and how many sales were made at other prices. This information may assist in defending any allegation of misleading or deceptive conduct and may also be useful to respond to any "substantiation notice" which the ACCC may issue under section 219 of the Australian Consumer Law.

The principles relating to "was/now" pricing are likely to apply equally to statements about percentage discounts such as "20% off!"


Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.