In Australian Competition and Consumer Commission (ACCC) v Turi Foods Pty Ltd [(No 4)  FCA 665] , the Court held that representations by Baiada Poultry Pty Ltd (Baiada) and Bartter Enterprises Pty Limited (Bartter) in advertising that their chickens were “free to roam around in large barns” was misleading. The trial was confined to liability, remedies will be considered separately by the Court.
The ACCC alleged that the representations “free to roam around in large barns” and “free to roam in barns” amounted to a representation that the chickens “had substantial space available allowing them to roam around freely” whereas in fact the chickens were “subjected to such stocking densities that they do not, as a practical matter, have substantial space available to roam around freely”. The ACCC submitted that in context the words “free” and “roam” invoked “the impression to consumers that Steggles meat chickens are largely uninhibited in their ability to move and patterns for movement by reason of the space available to them”.
The parties agreed that the phrase “free to roam” had to be read in the context of where the roaming was occurring: in large barns.
Justice Tracey agreed with the ACCC and said the phrase “free to roam” meant in the context of chickens, ‘the largely uninhibited ability of chickens to move around at will in an aimless manner’.
Justice Tracey held that prior to thinning out (from the 33rd day to the 42nd day of the chickens’ lifecycle), the chickens were free to move around the sheds at will. The chickens were obstructed by a barrier of clustered birds and could only move if they pushed through the group of birds or encountered a space between the birds. The Court therefore concluded that Baiada and Bartter had engaged in misleading and deceptive conduct under the former Trade Practices Act (TPA) and the current Australian Consumer Law (ACL).
The ACCC had alleged contraventions of subsections 52, 53(a) and 55 of the TPA (and the ACL equivalents). The section 55 allegation (that the “free to roam” representation was likely to mislead the public as to the nature and characteristics of the processed chickens) was not made out as there was no evidence to link the circumstances in which the chickens were raised with any inherent quality of the processed chickens.
In coming to a view as to whether the chickens were “free to roam”, the Court considered the following evidence:
- The stocking densities and average chicken size at different stages of the birds’ lifecycle.
- Expert evidence based on prior academic studies, that chickens would not be adversely affected up to a stocking density of 38kg per square metre (which was not exceeded by Baiada and Bartter). However, the Court did not find this expert evidence useful, because it was directed at whether Baiada and Bartter’s chickens had “space to move freely around the sheds in which they are raised over the various stages of their life cycle”, where that issue was not in dispute.
- The ACCC objected to video footage of the birds, which had been taken by cameras operated by the producers’ subcontractors, where it was sought to be tendered through an exhibit to the affidavit of a Baiada employee. Instead, excerpts from the footage were used in the cross-examination and re-examination of the Baiada national livestock manager. The Court did not find the excerpts helpful, as the parties used short, carefully selected excerpts supporting their argument.
- The movement around the sheds of certain chickens who had been painted fluorescent pink the day before the Court’s view in order to show how the chickens spread out in the shed. The ACCC raised objections to this, and suggested that the paint may have transferred onto other chickens. Furthermore, it was argued by the ACCC that the painted chickens only represented 2% of the chickens in sheds and could not give an overall picture of movement of all chickens in the sheds.
During the trial, the Court, support staff, lawyers and employees undertook a view of 7 Baiada and Bartter chicken sheds, 5 chosen by the producers and 2 by the ACCC. Justice Tracey noted that as the inspection party entered, the sea of chickens parted so that the party could move around the shed without stepping on the birds and that the sea of chickens closed behind them. Justice Tracey noted the phenomenon of clustering in the birds’ behaviour with the birds maintaining close physical contact with each other. Justice Tracey noted that the sheds which had just had “thin outs” contained older birds with little inclination to move but that these birds had a large enough space to move if they wanted to, in contrast with the sheds containing younger birds. Justice Tracey further noted that the painted birds had to some extent dispersed around the sheds.
Implications of this case
This was an advertising campaign designed to dispel the notion held in the community that meat chickens were raised in cages, however, the Court held that “free to roam” meant something beyond this in the context of chickens.
The case serves as a useful reminder to critically consider proposed campaigns, particularly in circumstances where ‘feel good’ slogans with no accepted industry definition are under consideration, such as “free to roam” or “free range” (click here for our related article on this issue).
The case also suggests that allegations of contraventions of section 55 of the TPA and/or section 33 of the ACL (misleading the public as to the nature and characteristics of the goods) are unlikely to be made out concerning representations about how produce or livestock is grown or raised, without evidence linking the manner of their creation with an inherent quality, such as taste or fat content. This is because the context of section 55 of the TPA is that the nature and characteristics of goods are to be identified by reference to their internal constitution or utility, rather than the manner of their creation.
Although a case essentially about advertising, there are obvious overtones and implications about animal welfare apparent for livestock producers.
Authors: Christine Jones and Kim Nguyen
Ron Eames, Partner
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 (No 4)  FCA 665