ACCC cracks down on free range claims

Declar­ing a crack­down on claims by poul­try pro­duc­ers of ​“free range” eggs or birds (or sim­i­lar expres­sions), the Aus­tralian Com­pe­ti­tion and Con­sumer Com­mis­sion (ACCC) has accused a num­ber of Aus­trali­a’s main chick­en sup­pli­ers of engag­ing in mis­lead­ing and decep­tive con­duct regard­ing the pro­mo­tion and sup­ply of their prod­ucts. The ACCC has indi­cat­ed that it will con­tin­ue to take action to ensure that claims made about the abil­i­ty of birds to move or roam are accu­rate, and that all mar­ket par­tic­i­pants adhere to rel­e­vant laws.

Turi Foods, which sup­plies La loni­ca brand chick­ens, has been ordered to pay a $100,000 fine end­ing a legal bat­tle ini­ti­at­ed by the ACCC. In Aus­tralian Com­pe­ti­tion and Con­sumer Com­mis­sion v Turi Foods Pty Ltd (No 2) [2012] FCA 19, the ACCC alleged that Turi Foods incor­po­rat­ed false and mis­lead­ing claims into their adver­tis­ing, por­tray­ing that La loni­ca chick­ens were housed in an envi­ron­ment of sub­stan­tial space, allow­ing the ani­mals to roam freely. How­ev­er, the ACCC alleged that with coups con­tain­ing up to eigh­teen chick­ens a square metre and this high pop­u­la­tion den­si­ty pre­clud­ing any move­ment, the chick­ens were not ​‘free to roam’. The ACCC suc­ceed­ed in prov­ing that the birds were not free to roam, and that, there­fore, the rep­re­sen­ta­tions to that effect were misleading.

Recent­ly, the use of expres­sions like ​‘barn laid’, ​‘free to roam’ and ​‘cage free’ have increased on pack­ag­ing and in adver­tis­ing of eggs and poul­try prod­ucts. Con­sumer advo­cates and ani­mal wel­fare activists believe com­pa­nies have intro­duced these ​‘feel good’ expres­sions to encour­age the con­sumer to pay a pre­mi­um for these prod­ucts by appeal­ing to the cus­tomer’s eth­i­cal sensibilities.

The head of the Aus­tralian Meat Chick­en Fed­er­a­tion claims the term ​‘free to roam’ is used by pro­duc­ers as a way to explain that the chick­ens are not kept in cages but rather are housed on the floors of large barns where they are able to move freely with­out the con­straint of barriers.

Irre­spec­tive of the rea­son­ing, it is clear that the ACCC is mon­i­tor­ing the use of these expres­sions, and will take action if it believes that the phras­es do not accu­rate­ly rep­re­sent the abil­i­ty of the birds to roam ​“freely”.

How­ev­er, what does cause con­fu­sion and some frus­tra­tion amongst con­sumer groups, ani­mal wel­fare organ­i­sa­tions and chick­en pro­duc­ers, is the lack of any agreed def­i­n­i­tion or set of Aus­tralian stan­dards in respect of terms such as ​“free to roam” or ​“free range”.

This recent deci­sion and the increased activ­i­ty by the reg­u­la­tor are impor­tant for any­one involved in the indus­try. How­ev­er, more than that, any pro­duc­er or sell­er must take care to ensure that the labelling and mar­ket­ing of their goods is accu­rate. In par­tic­u­lar, sell­ers should ensure that extra care is tak­en when using terms that may mean one thing to an expert in the trade, but which may be inter­pret­ed very dif­fer­ent­ly by the aver­age con­sumer, so that it is clear that the term is not like­ly to mis­lead, and expose the busi­ness to sig­nif­i­cant adverse pub­lic­i­ty, and sig­nif­i­cant mon­e­tary penalties.