That is the question that has been put before the Federal Court after an action against La Ionica and Steggles chicken farms. The two companies advertised in various forms and locations that their chickens were 'free to roam' - this claim, the ACCC argued, was misleading and deceptive (breaching s18, s29 and s33 of the Australian Consumer Law)
In cases such as this, where a company is accused of being misleading or deceptive, it is important to remember that it is not necessarily the factual truth behind these statements that determines whether or not there is a breach. What does matter is the impression that a reasonable consumer would get, taking into account the context in which the statement is made.
The central question in this case was, therefore, what would a reasonable person assume was meant by the 'free to roam'?
Turi Foods (aka La Ionica), conceded that the claim was likely to mislead or deceive consumers and that the chickens at their barns were not in fact 'free to roam' to the extent that a standard consumer would expect. They had made the claim on two posters displayed in stores and on signage on delivery trucks. Tracey J in the Federal Court ordered a fine of $100,000, a 3 year injunction on the 'free to roam' claim, a corrective notice be published in a major daily newspaper and that the organisation institute training for staff on the consumer laws.
Baiada and Bartter, who both sell chickens under the brand Steggles, decided to fight the allegations by the ACCC - leading to a trial in front of Tracey J. This trial considered the definition of 'free to roam', and visited the barns were chickens were kept - even taking the unusual step of painting a chicken to see how far it did indeed roam - to form a judgement.
The court has concluded that the conditions were such that the term 'free to roam' was misleading, and punishment will be set at a later date.
The final element of interest in this case was whether the Australian Chicken Meat Federation could make use of the 'Media Safe Harbour' defence, which prevents media from breaching the act if they make factual errors. The judge ruled that the AMCF, which made the free to roam claim on its website, had breached the act and was not entitled to the 'Media Safe Harbour' defence because they existed to promote the interests of the chicken farms.
The final element of interest in this case was whether the Australian Chicken Meat Federation could make use of the 'Media Safe Harbour' defence, which prevents media from breaching the act if they make factual errors. The judge ruled that the AMCF, which made the free to roam claim on its website, had breached the act and was not entitled to the 'Media Safe Harbour' defence because they existed to promote the interests of the chicken farms.
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