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
-
Present entitlement in trusts – what it means
Explore the High Court’s interpretation of “present entitlement” under the Income Tax Assessment Act 1936 (Cth). Learn when a person has a vested interest in trust assets and how the trustee’s discretion affects the beneficiary’s entitlement.
-
What exactly is a franked dividend?
Discover how dividend imputation works and how the amount of tax you owe on dividends can be affected by your marginal tax rate and the company tax rate. Learn about the different types of franked dividends, such as fully franked and partially franked, and how they can impact your finances.
-
Do I have an implied licence for software?
This article examines the implications of a Federal Court case, which awarded over $1.1 million in damages for unlicensed software use. Learn more about the decision and key principles for software licencing that businesses should consider.
-
The Modern Slavery Act 2018 (Cth) – explained
Australian businesses with annual consolidated revenue of AUD$100 million or more must now file a Modern Slavery Statement to the government’s online register, addressing modern slavery risks and due diligence/remediation processes. Lower revenue entities can also file voluntarily.
-
What are exclusive supply contracts?
The Court must consider whether the applicant has no other effective remedy, and if the information is sought for criminal proceedings, that there is a reasonable potential it will lead to conviction.
-
Shareholder oppression – a taxonomy of corporate wrongs
This article examines the concept of shareholder oppression and provides examples of when the Court has found oppressive conduct, as well as when it has not. It also outlines the remedies the Court prefers when faced with oppressive conduct.
-
Changes for casual employment – employer’s responsibilites
The Fair Work Amendment Act 2021 (Cth) has changed the landscape of employment for casual employees. Employers need to be aware of the amended definition of casual employees, the “casual conversion” option and the requirement to provide a Casual Employment Information Statement (CEIS).
-
The legal requirements of crowdfunding in business
Mareva Orders are a tool to protect the proper administration of justice and prevent an abuse of Court processes. The Court can restrain a defendant from disposing of their assets, ensuring the plaintiff has an effective remedy.
-
Electronic signing of documents no longer allowed for companies
The ability for companies to execute documents electronically (e-signing) is set to expire, but the Treasury Laws Amendment (2021 Measures No. 1) Bill 2021 could extend it. Find out how this could affect businesses and what the Senate’s decision could mean.
