The Australian Competition and Consumer Commission announced today that it would appeal aspects of the Federal Court's decision in the Prouds case relating to the significance of previous sales at the 'Was' price in 'Was/Now' advertising.
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' 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.
