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
-
Company wound up under s461K for failing to achieve its objectives?
The NSW Supreme Court case of Gearhouse provides insight into the Court’s power to wind up a company under the Corporations Act 2001 (Cth). A combination of circumstances, including deadlock between shareholders, loss of confidence in management and an expired agreement, can lead to winding up.
-
Director resignations – effects from 18 February 2021
The Treasury Laws Amendment (Combating Illegal Phoenixing) Act 2020 (Phoenixing Act) introduced major changes to the Corporations Act 2001 (Cth) (Corporations Act), with implications for directors. Learn more about the timeline for director resignations and the potential liabilities of directors under the new law.
-
Explaining Australia’s Media Bargaining Code
The News Media Bargaining Code (NMBC) is quickly moving through Parliament and looks likely to become law. It requires digital platforms, such as Facebook and Google, to negotiate remuneration with News Companies for providing their media services. Non-compliance could result in hefty civil penalties.
-
Shareholder oppression – the early warning signs
This article explores the legal framework of shareholder oppression and identifies early warning signs to look out for when starting a new venture, such as entity type, relationship with advisors, exclusion from management, access to info and non-flexible negotiation.
-
Understanding deal fatigue in business transactions
Learn how to reduce deal fatigue in commercial transactions. Tips include increasing bargaining position, introducing lawyers and planning the deal. Get advice to help you make the most of your next commercial transaction.
-
Ending an indefinite contract
Terminating an Indefinite Contract can be complex. This article examines the issues of reasonable notice, compensation, commission, and case studies to help answer common questions.
-
What is a registered design – Australian law
Learn more about registering a design in Australia and the legal rights associated with it. Understand the criteria for successful registration, the legal owner of the design, and infringement proceedings.
-
The tort of passing off explained
The tort of “passing off” occurs where one trader (Defendant) has wrongly represented that its goods or services are related to those of another (Plaintiff) by imitating the latter’s “get-up”, or look and feel of their product or service.[1] A passing off action is designed to provide a remedy when this situation results in damage to the Plaintiff’s business reputation. It is usually pleaded as an alternative cause of action to misleading and deceptive conduct pursuant to the…
-
Changes to monetary threshold for consumer contracts
Businesses have consumer guarantee protections to consider, with the threshold for contracts subject to Australian Consumer Law increasing from $40,000 to $100,000. Find out what changes you need to make to stay compliant with the law, as of 1 July 2021.
