Update to our article published on 23 July 2014
See further update published 14 April 2015
On 29 September 2014, Chief Justice Allsop of the Federal Court handed down his judgment in the Coles “Fresh Bread” case.
This decision highlights the potential perils of “pushing the boundaries” when it comes to advertising products for sale in a way that could be construed as misleading or deceptive within the meaning of section 18 of the Australian Consumer Law (ACL) which is contained within Schedule 2 the Competition and Consumer Act 2010 (Cth).
Coles has been restrained for a period of 3 years from making any representations on any packaging that its bread was made or baked on the same day it was sold or baked from fresh dough when that is not the case.
Coles has also been ordered to display a corrective notice in a prominent location on counters in Coles Bakery Stores and through a prominent “one-click link” displayed in the top one-third of its homepage.
The Court made various declarations including that in marketing various bread products as “Freshly Baked In-Store” and “Baked Today, Sold Today”, Coles:
- engaged in conduct in trade or commerce that was misleading or deceptive or likely to mislead or deceive, in contravention of section 18 of the ACL
- made a representation in trade or commerce, in connection with the supply or possible supply or promotion of the supply of goods that was false or misleading as to the history of the goods in contravention of section 29(1)(a) of the ACL; and
- engaged in conduct in trade or commerce that was liable to mislead the public as to the nature, the manufacturing process, and the characteristics of goods in contravention of section 33 of the ACL.
A copy of his Honour’s reasons for judgment and a copy of the corrective notice can be viewed here: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited (No 2) [2014] FCA 1022.
Further information
If you need further information about the potential of making misleading and deceptive statements in advertising, contact us for a confidential and obligation-free discussion:
Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
T: +61 7 3221 0013 (preferred)
M: +61 419 726 535
E: mburrows@dundaslawyers.com.au
Disclaimer
This article contains general commentary only. You should not rely on the commentary as legal advice. Specific legal advice should be obtained to ascertain how the law applies to your particular circumstance.
Related insights on competition and commercial law
-
Tax incentives for early-stage innovation investors
The Australian Government has proposed a bill to incentivise innovation and foster an entrepreneurial culture. Learn more about the 20% non-refundable tax offset for eligible investors and the potential for an Australian Innovation Fund.
-
Unfair contract terms, small businesses and amendments to Australian Consumer Law
The Australian Consumer Law (ACL) is introducing changes to small business contracts, and businesses must be prepared. This article provides guidance on understanding and applying the changes, which come into effect on 12 November 2016. Learn more about how to protect your business from potential detriment.
-
Federal Circuit Court strikes down ‘no refunds’ clause
In a recent judgment (Ferme v Kimberley Discovery Cruises Pty Ltd [2015] FCCA 2384), the Federal Circuit Court held that a term of a cruise company’s standard conditions, which allowed the company to cancel a cruise for a wide range of reasons without giving any refunds to its passengers, was an ‘unfair term’ under the…
-
Deceiving conduct costs Coles a lot of dough: ACCC v Coles Supermarkets Australia Pty Limited [2015] FCA 330
Coles Supermarkets has been ordered to pay a $2.5 million penalty for breaching the Australian Consumer Law. The Federal Court ruling serves as a reminder to businesses to be aware of their obligations under the Competition and Consumer Act and the Australian Consumer Law.
-
Reseller agreements – order taker or fiduciary
A Reseller Agreement is a powerful tool for businesses, but understanding the legal distinctions between a Reseller and an Agent is essential. Discover the key differences and how to protect your business in this informative blog post.
-
Enduring powers of attorney
Creating an Eduring Power of Attorney (EPA) can protect your finances and property in the event of illness or disability. Learn how to appoint an attorney, the power’s content, witnessing documents and more.
-
Re-settlement of trusts – towards a definitive test
The Copyright Act 1968 (Cth) has been amended to allow copyright owners to apply to the Federal Court to block access to infringing websites or online locations outside Australia, and to stop search engine providers from indexing them.
-
Overview of convertible notes
This article examines the features, accounting treatment, benefits, and legal issues of Convertible Notes – a complex financial instrument. It explores how both issuer and holder may benefit, and potential legal issues associated with their use.
-
Changes to Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2014] FCA 634
Coles has been found to have breached the Australian Consumer Law (ACL). Find out what this means and how it could affect you. Get in touch for an obligation free and confidential discussion.
