Australia’s two biggest supermarket chains, Coles and Woolworths, are one step closer to a courtroom showdown with the ACCC after all parties agreed on key facts in the regulator’s case alleging fake discounting on hundreds of grocery items.

The Australian Competition and Consumer Commission (ACCC) claims the retailers misled consumers by using inflated “discount” prices on popular products – allegedly hiking prices before promoting lower “specials” that were still higher than regular shelf prices.

Filed in the Federal Court, the statement of agreed facts is set to shift the focus to whether Coles and Woolworths’ promotional tactics broke consumer law, rather than debating the pricing history of over 500 individual items.

According to court documents, Woolworths ran 276 “Prices Dropped” promotions on 266 items between September 2021 and May 2023.

Coles ran 255 “Down Down” promotions on 245 items between February 2022 and May 2023.

The ACCC alleges some discounted items, including Coca-Cola, Moccona coffee pods, and Oreo biscuits, were up to 33% more expensive than their pre-promotion shelf prices. In one case, a bottle of Sprite marketed as a discount was actually priced a third higher than before.

Woolworths and Coles deny the allegations, arguing that price changes were driven by supplier cost increases and that their promotions offered genuine value.

The Federal Court will now consider a smaller, agreed sample of 12 to 16 products, instead of reviewing the full list, which Justice Michael O’Bryan previously said would be “absurd”.

The ACCC is seeking financial penalties, declarations, and community contributions from the retailers if found in breach of Australian Consumer Law.

The case comes amid rising cost-of-living pressures and follows a Senate inquiry earlier this year that criticised supermarket pricing tactics.

The case reflects a wider push by the ACCC to stamp out misleading discount practices, following recent fines issued to three retailers for deceptive “sitewide” discount claims during last year’s Black Friday sales.

Neither Coles nor Woolworths has commented publicly on the new court filing, citing ongoing legal proceedings.