20 February 2014


There's an old gibe that vaudeville isn't dead, it just smells that way.

I was reminded of that claim in reading reports that retail giant Coles has defended its use of the descriptor “baked today, sold today” in a federal court action brought by the Australian Competition and Consumer Commission (ACCC).

The ACCC, represented by Colin Golvan SC, has argued that the bread is partially baked before being sold in store, with Golvan commenting
It essentially involves a process where [a] product is cooked to the part where the interior is complete and there is a commencement of the baking of the crust, which is left to be finished by Coles
Representations by Coles were false, misleading and deceptive on the basis that baking occurred six month before the bread was sold in stores.

Last year it was argued in court that the bakery products were either made in Ireland or had been initially baked in different locations in Australia.

In a nice example of casuistry Coles claims that it was not suggesting that the bread was baked on the day.
What is happening with this ‘baked today, sold today’ in a Coles supermarket is that a consumer is being given the choice between the juxtaposition, the commercially manufactured bread, which has preservatives and keeps for longer, with the bread that is baked in-store and doesn’t have preservatives.
The bread that is baked in-store is crunchier, and smells and has the flavour of freshly baked bread. That’s what we submit it is.
In mid 2013 the ACCC indicated that
The ACCC is alleging false, misleading and deceptive conduct in the supply of bread that was partially baked and frozen off site, transported to Coles stores and ‘finished’ in-store. The products were then promoted as ‘Baked Today, Sold Today’ and/or ‘Freshly Baked In-Store’ at Coles stores with in-house bakeries. 
The legal action covers various ‘Cuisine Royale’ and ‘Coles Bakery’ branded bread products. The ACCC alleges that labels on these par baked products stating ‘Baked Today, Sold Today’ and in some cases ‘Freshly Baked In-Store’, and nearby prominent signs stating ‘Freshly Baked’ or ‘Baked Fresh’, were likely to mislead consumers into thinking that the bread was prepared from scratch in Coles’ in-house bakeries on the day it was offered for sale and that it was entirely baked on the day it was offered for sale. 
Coles also uses these same representations to promote bread that has been made from scratch in Coles’ in-store bakeries. The ACCC is concerned that Coles’ lack of distinction in its promotional representations between bread products that are freshly prepared from scratch and par baked products is misleading to consumers and places competing bakeries that do freshly bake from scratch at a competitive disadvantage. 
ACCC Chairman Rod Sims said, “There are two important issues at stake. First, consumers must be able to make informed purchasing decisions. Bread is an important grocery basket staple and customers need to be confident in claims made about food they buy.” 
“We believe consumers are likely to have been misled by Coles that the entire baking process, including preparation, occurred in-store, when in fact the bakery products were prepared and partially baked off site, frozen, transported and then ‘finished’ in store. Indeed, the Cuisine Royale products were partially baked overseas.” 
“Second and just as important, is the detrimental impact on the businesses of competitors. Misleading credence claims can undermine the level playing field and disadvantage other suppliers. In this case those suppliers are the smaller, often franchised bakeries that compete with Coles,” Mr Sims said. 
In the past few years, Coles has heavily promoted its in-store bakeries and introduced a number of ‘rustic’ bread lines. Many of these ‘artisan-like’ breads have been par baked and frozen before being ‘finished off’ before sale, whereas many independent bakeries make their bread from scratch in the bakery on the day of sale. 
Bringing this action is part of the ACCC’s publicly declared enforcement priority of investigating credence claims, particularly in the food industry, with the potential to significantly impact consumers and competitors.