By Mark Armstrong, Senior Associate

23 September 2026

A recent decision by the Ad Standards Community Panel has found McDonald’s in breach of section 2.1 of the AANA Food and Beverages Advertising Code for misleading claims about it’s “99c delivery fee”. The AANA advertising codes are regulated by the advertising industry without governmental intervention. However, the Australian Consumer Law (ACL) contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) also contains provisions about misleading and deceptive conduct and making false or misleading representations. Accordingly, this decision poses an interesting question: would the same ruling be made when assessed under the ACL? Read on as we slice through Macca’s questionable claims.

What happened?

McDonald’s published a series of televisions ads with the claim, ‘Get Macca’s delivered for a 99-cent delivery fee’, with prominent on-screen text that read, ‘99c DELIVERY FEE’ or ‘99c McDelivery’. What was not disclosed in the ads was that McDonald’s pricing of products differs significantly between pickup and delivery orders, to the point that delivery items are individually priced 20 – 25% higher than items ordered for pickup.

Section 2.1 of the AANA Food and Beverages Advertising Code holds that advertising for food or beverage products must not be misleading or deceptive, or likely to mislead or deceive, which reflects virtually identical wording to that in the ACL. An Ad Standards complaint was lodged on the basis that the claim was misleading and despite McDonald’s assertions that a reasonable consumer would understand the ‘99c delivery fee’ claim to refer to the delivery component only (and not a comparison between pickup and delivery pricing), the Community Panel upheld the complaint.

The panel held that the claim was misleading, noting that viewers could interpret the claims to mean that the difference between a regular pickup order and an order for home delivery would be the 99c fee – i.e. a $15 pickup order delivered would be $15.99. However, noting the price discrepancy between pickup and delivery orders, a $15 pickup order, when totalled for delivery, would almost certainly be more than this price. McDonald’s noted that the ad did not make a claim about overall pricing, included the disclaimer, ‘Service and small order fees still apply’ and all fees and the total order cost were displayed for each user before finalising their purchase. The Community Panel rejected this argument and considered that unless users made considered efforts to compare prices which involved creating two completely separate orders, they might not realise the increased costs for individual delivery items, and on this basis, the ads were misleading.

What impact would this have on McDonald’s?

As noted above, the AANA advertising codes are regulated within the advertising industry. An upheld complaint does not result in any financial penalties or civil or criminal convictions because the advertising codes are industry instruments and not legislation regulated by the government, but this does not mean McDonald’s would get off scot-free. At the present moment, every Ad Standards complaint decision is published on the Ad Standards website for viewing by the general public. Consequently, an upheld Ad Standards complaint can lead to backlash or negative PR, especially if the decision is more widely circulated (such as in an article like this one), and advertisers are compelled by Ad Standards to modify the ad (if possible) or discontinue the ad in its entirety (if modification is not possible). In this case, McDonald’s response was typical of an advertiser that receives an upheld complaint – McDonald’s stated that although they were disappointed with the outcome, McDonald’s remained committed to ensuring compliance with the AANA codes and would modify the ads.

In certain upheld cases, where modification is not possible, the ads would need to be removed. If a significant amount of funds are spent on the development of the ads, such as fees for talent, creative agency, and/or sponsorship – noting also that this campaign was created in partnership with the AFL – this could mean that an expensive campaign could end up in the trash with little to show for it, which could be exponentially worse if the ad is intended to be used for an extensive period of time. Accordingly, while financial penalties are not imposed for AANA code breaches, an upheld decision could still be a costly exercise.

What about the ACL?

The ACL contains provisions that broadly prohibit engaging in conduct that is misleading or deceptive, or likely to mislead or deceive, as well as provisions that prohibit making a false or misleading representation, including with respect to the price of goods or services. Accordingly, there could be reasonable grounds for a consumer to make the same complaint for this McDonald’s advertisement under the scope of the ACL.

While it is impossible to determine with certainty whether a court would rule the same way as the Ad Standards Community Panel, there could also be a reasonable argument that McDonald’s pickup vs delivery pricing structure could constitute a misleading representation with respect to the price of goods or services in breach of the ACL. However, noting that the Community Panel is – as suggested by its name – intended to be representative of the wider community, the assessment process could arguably be considered more simplified than one made by a court.

Ultimately, it remains to be seen if the ACCC will decide to use this decision as an impetus to launch its own action, and the possibility cannot be ruled out.

What does this mean for you?

McDonald’s may have got off lightly for only facing an upheld Ad Standards complaint instead of squaring off with the ACCC in court. The maximum penalty for breaches of the ACL including for misleading representation with respect to the price of goods or services is the greater of:

• $100 million;
• if the Court can determine the value of the ‘reasonably attributable’ benefit obtained, three (3) times that value; or
• if the Court cannot determine the value of the ‘reasonably attributable’ benefit, 30% of the corporation’s adjusted turnover during the breach turnover period for the contravention.

Accordingly, the potential penalties for misleading claims may not be limited to only having to modify or discontinue the ad, and advertisers must be cautious to ensure they keep on the right side of the line. This is especially so when it comes to pricing, as the ACCC has a penchant for launching action on the basis of misleading pricing. The best way to steer clear of any ACCC interactions is to have your advertising and claims reviewed by an expert in the field.

Contact us

If you would like support or further information in relation to your advertising claims, please get in touch with one of our experts below. We can provide tailored legal and practice advice to assist you, including providing ad clearance services.