Most Read Contributor in Australia, September 2016
The Federal Court of Australia recently handed down the decision
of Australian Competition and Consumer Commission
(ACCC) v Coles Supermarkets Australia Pty
Limited  FCA 634 after complaints were made about the
meaning of the phrases "freshly baked bread" and
"baked today, sold today". These phrases were used in
Coles' signage in relation to Coles branded bread which was
partially baked overseas before the baking process was completed in
Coles used three methods to prepare bread in-store which
preparing bread from scratch including making dough from
ingredients which were not frozen and then applying heat to the
thawing and applying heat in-store to frozen dough obtained
from a supplier
applying heat in-store, to dough which is made, par-baked and
frozen by a supplier.
The subject of the proceedings was the third method, i.e. the
par-baking of the bread which the ACCC alleged was an express or
implied misrepresentation that the bread was baked from scratch,
or, entirely baked on the day it was sold.
The ACCC asserted that the misrepresentation would be likely to
induce customers to purchase the bread on the belief that they had
been baked from scratch or entirely baked on the day of purchase,
in breach of sections 18(1), 29(1)(a) and 33 of the Australian
Consumer Law (ACL). These sections provide that a
person must not engage in misleading or deceptive conduct in trade
The Court considered that the relevant test was to identify the
misleading conduct and then to consider whether the conduct as a
whole was misleading or deceptive or likely to mislead or deceive,
judged by their effect on "ordinary" or
"reasonable" members of the class of prospective
The Court found that:
reasonable and ordinary people would understand the phrase
"baked today, sold today" to mean that the entire baking
process (not just some of the heating process) had taken place
today. Therefore it would be misleading or deceptive or likely to
mislead or deceive, for Coles' advertising to state that a
par-baked frozen product was "baked today", if it was
similarly, reasonable and ordinary people would be misled by
the phrases "freshly baked", "baked fresh",
"freshly baked in-store" which conveys the message of the
baking of fresh dough where the baking process was in fact, the
heating of a par-baked, frozen product.
The Court recognised that consumers are often healthily cynical
about the language of advertising but that it was still important
for Courts not to permit consumers to be misled.
This case is important guidance for companies who manufacture
and promote food products.
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