Acc V Coles Supermarket Case Study

ACCC v Coles Supermarket was heard in the Federal Court of Australia by Chief Justice Allsop. The ACCC took issue with the advertising of products sold in Coles In-store Bakery’s. In particular, relief was sought concerning par-baked bread, which is bread that has been partially baked, then frozen and is re-heated at Coles Bakery’s. Companies should indeed advertise a product by ‘praising its virtues’ but not to the extent that it misleads the public. The decision echoes an increased attention on labelling laws in Australia and highlights the tension surrounding A company’s right to use marketing campaigns to maximise profits, and the right of the consumer to know what they are buying so as to not be ‘lead into error’. It was clear that …show more content…
Part of that context was the meaning of the words ‘fresh’ and ‘bake’; while the court recognised that the ordinary definition of the word ‘bake’ could imply the process of baking to include putting together ingredients to make the dough fresh, and not merely heating the bread, it also recognised that the commercial definition could mean only the heating process. Although, importantly, an ‘advertisement will be misleading or likely to mislead or deceive if any reasonable interpretation of it would lead… into error. The context to be considered is that of an ‘ordinary and reasonable person’ who might shop at Coles, following Campomar Sociedad Limitada v Nike International. Additionally, given that this hypothetical person would be buying bread, a staple food item, in a supermarket, this person could be anyone and is likely to be distracted by items on a shopping list, sale items or advertising. In other words, this person ‘may be intelligent or well educated or not’, may not undertake an ‘intellectualised process of analysis’ and is ‘likely affected by an intuitive sense of attraction rather than by any process of analytical or logical choice’. To the contrary, Coles claimed that part of the context considered should include that a reasonable or ordinary consumer would be aware that Coles may use third parties. Though this may be true for ‘more wary readers’, Coles is ‘not entitled to assume that the reader will be able to supply… omitted facts or to resolve ambiguities’, as stated by Justices Sheldon and Sheppard in CRW Pty Ltd v Sneddon. The court correctly found that an ‘ordinary’ and ‘reasonable’ person includes those who are intelligent or educated and those who are not. Coles also argued that the significant representation was that there was ‘available bread that has recently been baked in an oven, which is in contradiction to commercially manufactured bread’. While the parties concluded