Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd

In the case of Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd, the Australian Competition and Consumer Commission (ACCC) brought an action against Coles Supermarkets Australia Pty Ltd for misleading and deceptive conduct under the Australian Consumer Law (ACL). The ACCC alleged that Coles misled consumers by advertising certain bread products as "baked fresh in store" and "baked today, sold today," when in fact the bread had been par-baked and frozen by suppliers before being sold in Coles stores.

The central legal issue was whether Coles' conduct constituted misleading or deceptive conduct under sections 18, 29(1)(a), and 33 of the ACL. The court examined whether the advertising was misleading in the context of the reasonable consumer's understanding and whether the representations made by Coles were accurate. The court also considered the admissibility of evidence submitted by Coles regarding the industry practice of using similar terms by other retailers.

The court ruled that Coles had indeed engaged in misleading conduct. The judge found that the representations made by Coles were likely to mislead the reasonable consumer into believing that the bread was freshly baked in-store from scratch, when in fact the bread had been par-baked and frozen by suppliers. The judge rejected Coles' argument that the reasonable consumer would understand the term "baked fresh in store" to mean the completion of a baking process that started off-site. The judge emphasised the importance of clear and truthful advertising, warning against a culture of deception that could result from allowing misleading advertising to pass unchallenged.

As a result of the findings, the court ordered that the ACCC prepare draft orders for Coles within seven days, with the possibility of further debate on the proper form of orders if necessary. The court requested that any such debate be accompanied by short submissions from the parties.