On 18 June 2014 the Federal Court ruled that Coles engaged in misleading and deceptive conduct in contravention of sections 18, 29(1) and 33 of the Australian Consumer Law (ACL) when marketing its par baked bread as "baked today, sold today", "freshly baked" and "baked fresh". Par baked bread is prepared for sale by applying heat in an oven to partly baked dough, that has been snap frozen and stored for a period of time.
Baker & McKenzie's disputes group in Melbourne represented the ACCC.
What you need to know
- The decision is an important reminder to food businesses to exercise caution when using broad laudatory words and phrases that are intended to influence the buying decisions of consumers and are capable of many different meanings, some of which may be accurate while others may be false or misleading depending on the context. Common examples using the word "fresh" include "garden fresh", "fresh from the farm", "freshly squeezed" and "fresh taste".
- While the words "fresh" and "freshly" connote "recency" they can also connote other, less precise meanings depending on the context in which they are used. In the context of an "in-store bakery", the claims "freshly baked" and "baked fresh" connote that there has been a recent baking of fresh dough rather than par baked frozen dough. Food businesses seeking to make "fresh" process claims (eg freshly packed, freshly squeezed) should not assume that the recency or immediacy of the relevant process will always, in and of itself, be sufficient to avoid misleading consumers.
- The case was limited to a consideration of the use of the claims in the context of par baked bread, not the use of frozen dough that is thawed, proven and then baked in store to make bread and other bakery products such as biscuits and cakes. There remains a question as to whether the use of the phrase "freshly baked" (or even just the word "fresh") in respect of products made from frozen dough could be misleading and deceptive.
- Advertisers should not assume that they can justify misleading consumers through the use of broad laudatory language on the basis that the public is cynical enough to look after itself or that "everyone takes advertising with a pinch of salt".
Coles' in-store bakeries use three methods of baking: preparing bread 'from scratch' (i.e. mixing ingredients to make dough and applying heat in an oven); applying heat in an oven to frozen dough; and applying heat in an oven to par-baked bread that has been snap frozen and stored for a period of time. The ACCC took issue with the third process, being the par-baking of bread.
Coles employed the following claims when advertising its bread:
- Baked today, sold today.
- Freshly Baked.
- Baked Fresh.
- Freshly Baked In-Store.
- Coles Bakery.
As a result of these claims, the ACCC asserted that Coles had marketed frozen and par-baked products using an express or implied representation that they were either baked from scratch, or, at least, entirely baked on the day they were offered for sale, meaning that the entirety of the baking or heating process in an oven took place on that day.
The importance of context
Allsop CJ placed significant emphasis on the role of context when determining whether conduct is likely to mislead or deceive. In some contexts, baking could mean the preparation of dough from scratch. In other contexts, baking could refer to the heating or cooking process alone.
In the Coles context, His Honour found that the phrase "baked today" has no precise meaning, but is plainly intended to convey the recency of baking on the day of sale ie. the heating process of cooking the dough. The claim did not convey a message that only some baking had taken place that day and initial baking of a substantial kind took place weeks (or months) ago at various locations (including Ireland) prior to freezing. Accordingly, His Honour found that Coles had conveyed misleading representations that the par-baked products had been "baked today" when in fact, they had been substantially baked previously.
So what does 'fresh' mean?
As the case indicates, the meaning of "fresh" will differ depending on the context in which it is used. The word is often used in phrases that may have an emotive appeal designed to influence the buying decision of consumers but that have no single, precise meaning. Examples of this include "oven fresh", "garden fresh", "fresh from the farm", and "ocean fresh".
In these cases, the word may connote notions of recency (ie. that the product was recently harvested) and/or notions of being "unprocessed" or not interfered with by man. The danger lies in the multitude of possible meanings, only one of which needs to be potentially misleading in order to fall foul of the ACL.
In the Coles context, the word fresh was used in relation to a specific process (namely baking). Similar claims include "freshly squeezed" (for juice), "freshly ground" (for coffee) and "freshly packed".
In the Coles context, the words "fresh" and "freshly" were said to convey two possible meanings: that the baking process itself was fresh and that there was baking of fresh dough. Allsop CJ concluded that the claim "freshly baked" conveyed the freshness of the product and the freshness of the whole process of baking ie. that there there had been baking of fresh dough. The decision indicates that it may not be enough to simply demonstrate the immediacy or recency of the relevant process in order to avoid misleading consumers. The freshness of the ingredients themselves may need to be considered.
For advertisers marketing par-baked from frozen products, His Honour posited that any claim should "make it tolerably clear to the public that the recent baking was the completion of a baking process that had taken place some time before, off site, and that “freshly baked” actually meant the completion of the baking process of frozen product prepared and frozen off site by suppliers."
What about frozen dough?
Although the subject of the complaint was par-baked bread, the decision provides some commentary on the common practice of using frozen dough. If marketing claims suggest that a product is made from scratch where, in actual fact, only frozen dough is used, then such claims are likely to be misleading. Allsop CJ noted that use of the claim "baked today, sold today" is not misleading in circumstances where the entire heating or cooking process occurs that day, but not from scratch, the implication being that it would not be misleading to use the phrase in connection with a product made from frozen dough. However, the issue remains whether "freshly baked" claims would be appropriate where frozen dough is used.