The Federal Court tasked with answering that query, found that this requires the uninhibited ability of chickens to move around at will and in an aimless manner.

In so finding, the Court agreed with what the Australian Competition and Consumer Commission (ACCC) had contended in its action against Baiada Enterprises Pty Ltd (Baiada), Bartter Enterprises Pty Ltd (Bartter) and Australian Chicken Meat Federation Inc (the Association).

Baiada and Bartter’s chickens “free to roam”

Baiada, Bartter and farmers contracted to them, raise chickens in large barns that hold an average of 30,000 to 40,000 chickens at varying stages of the growing cycle. The full growing cycle is 53 to 56 days and some chickens are removed as early as 28 days, so that the number of chickens gradually reduces towards the second half of the full growing cycle.

Whilst the chickens were able to move in the barns, even to the extent that allowed for the Court’s inspecting party to move through the inspected buildings, Justice Tracey found that “until the levels dropped at some point between the 33rd and 42nd days of the growing cycle, chickens could not (…) be said to be free to move around the sheds at will and with a sufficient degree of unimpeded movement to justify the assertion that they were “free to roam”.

Accordingly, Baiada and Bartter were found to have breached sections 52 and 53(a) of the (then applicable) Trade Practices Act 1974 (Cth) by representing that their chickens were “free to roam”.

The ACCC also asserted that the representation that the chickens were “free to roam” was likely to mislead consumers as to the nature and characteristics of the chickens. The Court did not agree with this contention pointing out that being “free to roam” did not relate to a characteristic inherent in the chickens.

The Association a “prescribed information provider”

The Association was taken to task for its representation that its members’ chickens (of which Baiada and Bartter are two) “roam freely” or are “free to roam”. Having found against Baiada and Bartter, the Court indicated that those findings equally applied to the Association.

The Association, however, sought to rely on a defence that it was a “prescribed information provider”, a defence which has become known as the “media safe harbour defence”.

The Court agreed with this contention indicating that being a publicist for the chicken industry did not mean that the Association did not provide information to consumers.

However, the Court went on to find that exceptions in that provision applied to the Association. Firstly, the Court emphasized that the Association engaged in promotional activities on behalf of its members, including Baiada and Bartter, and was therefore not an independent information provider.

Secondly, the Court was of the view that each of the Associations’ publications sought to promote its members’ interests, namely the consumption of chickens, which amounted to advertisements, and such advertisements were not to be treated as “prescribed publications".