Every November, the ACCC sweeps Black Friday advertising for misleading sale claims. Here’s what its past sweeps reveal about “sitewide” sales, “up to” discounts, RRP comparisons and bundle deals, and how retailers can stay on the right side of the Australian Consumer Law.
Most retailers and consumers will be familiar with the Black Friday promotions that roll out every November, complete with claims such as “sitewide”, “up to 70% off”, “don’t pay RRP”, “bundle and save” and “limited time only”.
Retailers aren’t the only ones busy in November. The Australian Competition and Consumer Commission (ACCC) runs its own sweep in November across websites and catalogues, scrutinising advertising claims to ensure compliance with the Australian Consumer Law (ACL). In the months that follow, the ACCC publishes its findings, which are often followed by infringement notices, undertakings and, in some cases, court proceedings.
With Black Friday fast approaching, this guide sets out important lessons from the ACCC’s previous Black Friday sweeps, including the key phrases and campaigns that most often land retailers in trouble.
Repeat Offenders: The Four Black Friday Claims the ACCC Targets Most
The ACCC’s Black Friday sweeps have identified the same four practices:
- “Site-wide” sales with exclusions: Following the ACCC’s 2024 sweep, Michael Hill and Hair House each paid a $19,800 infringement notice issued by the ACCC for advertising site-wide sales that were, in fact, not site-wide. Michael Hill advertised a “Member Event 25% off Sitewide” when not all products were included. MyHouse combined “Up to 60% OFF RRP EVERYTHING ON SALE” with “+EXTRA 20% OFF” when in fact, the extra discount did not apply to all products.
- “Up-to X% Off”: Where the words “up to” are not prominent, or where only a few products are actually discounted at the top of the range, the ACCC has held companies to account for misleading consumers.
- Fine print contradicts the headline: Disclaimers that are not prominent to consumers, such as those limiting the offer to members or excluding entire product categories, can also be misleading.
- False urgency: “Limited time” sales that continue past their advertised end date.
- On 29 September 2026 James Lane ($19,800) and Vuly ($39,600) paid infringement notices for Black Friday 2025 sales that ran past their advertised end dates, including countdown timers that reset.
After its November 2025 sweep the ACCC announced that it had opened several investigations. In April 2026 the ACCC said around half of the 50 retailers it reviewed made concerning claims.
Misleading and deceptive claims under Australian Consumer Law
The risk for retailers doesn’t stop at the headline banner. Retailers can also be penalised for misleading claims that run deeper into their marketing and pricing campaigns. The key test for misleading conduct comes from the ACL, which sits within Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Section 18 of the ACL prohibits conduct in trade or commerce that is misleading or deceptive, or likely to mislead or deceive. Section 29 prohibits false or misleading representations about goods, including their price (s 29(1)(i)), and carries civil penalties. The two provisions are usually relied on together.
The key question is what overall impression the conduct creates in the mind of an ordinary, reasonable consumer.
Courts have often found the following conduct to be misleading.
“Don’t pay RRP”: When is an RRP comparison misleading?
A Recommended Retail Price (RRP) comparison works because the ordinary customer assumes the RRP is a real price that other retailers charge, and that they are therefore getting a discount. The ACCC’s position is that the RRP must be genuine: issued by an independent importer or manufacturer, and a price at or near which the product actually sells in the current market. If you are the only retailer selling a product, there is no market price yet, so any comparison may be misleading.
The owner of Chemist Warehouse recently paid infringement notices over “Don’t Pay RRP” claims for products that were its own exclusive brand and had never been sold at the RRP by any other retailer. The ACCC has said, “if the product has never been previously sold at the RRP, or the RRP does not reflect a current market price, then this type of comparison misrepresents the savings that may be achieved.”
On sale: when a sale price becomes the normal price
A product may spend so much of its life on promotion that its sale price becomes the ordinary price, and comparisons with the once-higher price will mislead the ordinary consumer. The ACCC has warned that if an item is offered at a sale price for an extended period, it may be misleading to keep calling it a sale price. A promotion must end, and the product must return to full price for long enough to re-establish it before it can be promoted against that price again. A strikethrough that never comes off the ticket is a comparison with a price that no longer exists.
“bundle and save” and dell’s $10 million penalty
“Bundle and save” is a common claim that buying several items together costs less than buying them separately. To pass the test, the bundle must provide a genuine discount, and each item’s individual price must itself be genuine and established. If one item in the bundle is on promotion, the saving must be measured against what the customer would actually pay for it today. A single bundle price must include all compulsory charges (s 48 of the ACL), and all conditions must be clear.
Dell is a leading example. In 2023, its bundle and save promotion advertised add-on monitors with a strikethrough price when bought with a computer. Dell later admitted the monitors had rarely sold at that price and that, in many cases, customers paid more for the monitor in the bundle than on its own. The Federal Court ordered Dell to pay a $10 million penalty.
Figure 1. A “bundle and save” claim and the three conditions behind it
Disclaimers and fine print: what the accc expects.
The ACCC warns that the real terms of an offer must not be hidden in obscure locations, in text that is too small, in disclaimers flashed for a moment, or in voice-overs too quick or quiet to follow. Qualifications must be prominent, sit close to the headline and never contradict it.
puffery vs factual claims: where advertising crosses the line
Puffery refers to exaggerated or hyperbolic statements that are so clearly promotional and subjective that no ordinary person would take them as literal facts. Taglines such as “the best coffee in the world!” are broad, boastful claims that cannot be verified or relied on for their literal truth, so no reasonable consumer would take them seriously. Conversely, statements that are specific and measurable are more likely to be taken as fact and to be closely scrutinised by the ACCC, particularly where they relate to the safety, origin, environmental performance or technical capability of a product. Between the two sits a grey zone. Claims such as “premium quality” or “lasts for years” may sound like puffery, but in context they can be read as statements of fact, so retailers should be ready to back them up.
Figure 2. From puffery to factual claims: the more specific the claim, the more likely it needs proof
In June 2022, Samsung was ordered by the Federal Court to pay $14 million in penalties for misleading water resistance claims about its mobile phones. Samsung published nine advertisements online and in-store showing various Samsung Galaxy phones in pools and sea water, including one with the statement: “Do everything you love this summer on the Galaxy A5. Whether its listening to your favourite song by the pool or capturing your Sunday surf session at the beach”. Pool and sea water could, in fact, damage the phones. Taken together, the imagery and text made a factual claim to consumers that was not true.
Can you say? five safer ways to advertise Black Friday sales
To avoid misleading consumers (and attracting the ACCC’s attention) this Black Friday, we recommend the following marketing and advertising strategies:
- Name the price: if a product’s price hasn’t yet been established, use words that describe the price without comparing it to another price, such as “great price.”
- Name the category: Rather than “sitewide” sales with hidden exclusions, specify the category of products on sale, such as “30% off all soccer balls”.
- Give real dates: “Ends Sunday, 30 November” is safer than “limited time only.” Just make sure the offer actually ends on that date.
- Genuine strike-throughs: only use a strike-through price where it reflects a genuine established comparison price.
- Keep it clear: Qualifications must be clear and prominent and should not directly contradict the prominent features of the advertisement or promotion. The ACC recommends placing disclaimers close to the headline.
The evidence: responding to an ACCC substantiation notice
As well as ensuring marketing and advertising campaigns comply with the ACL, retailers must be able to substantiate their advertising practices with real data. The ACCC can issue a substantiation notice under s 219 of the ACL requiring a business to produce evidence supporting a claim. A retailer should be able to produce evidence such as price histories (with dates and volumes sold at each price), promotion calendars and the basis for any RRP.
The bottom line: ACCC enforcement priorities for 2026-27
The ACCC’s compliance and enforcement priorities for 2026–27 are based on concerns raised by stakeholders. Most immediately, the ACCC has announced another sweep across multiple retail sectors during the Black Friday and Cyber Monday sales period, and for the first time it will examine marketing emails and social media promotions as well as websites. ACCC Deputy Chair Catriona Lowe has warned that retailers risk enforcement action if they misrepresent the size, scope or duration of their sales, and should not rely on fine print disclaimers or exclusions to qualify the headline message of a promotion. The ACCC’s broader priorities include:
- Consumer and fair trading concerns in the supermarket and retail sectors, with a focus on misleading pricing practices.
- Tackling unfair persistent business practices and growing consumer mistrust in digital markets, including manipulative and false practices.
- Unfair contract terms in consumer and small business contracts, with a focus on harmful cancellation terms, including those associated with automatic renewals, early termination fee clauses, and non-cancellation clauses.
- A focus on the accountability of senior executives, particularly where there appears to be a poor compliance culture within the business.
If you would like your Black Friday campaign reviewed before it goes live, or would like assistance with your marketing, advertising and compliance regimes, we invite you to contact the commercial and litigation team at KPA Lawyers for a confidential discussion.
