ACCC to appeal aspects of Prouds misleading and deceptive conduct case

The Australian Competition and Consumer Commission says it will appeal aspects of the Federal Court’s recent “was/now” advertising decision.

The ACCC was successful in the first instance in demonstrating that two Prouds catalogues were misleading in using “was/now” advertising.

However, although Justice Moore held that the difference between was/now prices would be seen by some consumers “as the savings that would be achieved by him or her by purchasing an item during the sale period” he did not consider that those consumers would believe that the item was sold at the “was” price in the period before the was/now promotion.

It is this aspect of Justice Moore’s decision that the ACCC is appealing.

The matter is listed for call over before the Full Court on 30 July 2008.

The advertising was in the form of price comparisons, such as “was $199 / now $99.50” and appeared in Prouds’s February 2006 “Summer of Love” catalogue and its May 2006 “Love You Mum” catalogue. Numerous jewellery items were advertised in this way in each of these catalogues. The case related to the was/now price advertising of the 17 items that appeared in both catalogues.

Justice Moore concluded that the was/now advertising conveyed to consumers that the jewellery items had been offered for sale for a reasonable period immediately before the catalogue promotion at the “was” price.

He found that each of the 17 items had not in fact been offered at the “was” price in that period and concluded that the was/now advertising of each of the items in both catalogues was misleading.


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