Coles Faces Fresh Criticism Over Its “Spring” Fruit Claims
Monday 10 November 2014 @ 11.07 a.m. | Trade & Commerce
Coles is facing fresh criticism for misleading its customers, after the Advertising Standards Board (ASB) found its ad for “spring” apples was misleading.
The finding comes after the supermarket was slapped with a three year ban from advertising its bread products as “freshly baked” in June 2014, after the Federal Court ruled Coles had engaged in misleading and deceptive conduct.
In the “freshly baked” bread case, it was found that Coles had breached ss 18(1), 29(1)(a) and 33 of the Australian Consumer Law (ACL) by labelling its par-baked bread “fresh” in ACCC v Coles Supermarkets Australia Pty Ltd [2014] FCA 634 (18 June 2014).
In the current issue, the ASB upheld a complaint made against the television commercial featuring celebrity chef Curtis Stone, in which Stone makes reference to Tasmanian Pink Lady Apples being “fresh” in store.
In the ad, Stone said:
“Feed your family better, fresher, with spring fruit and veg from Coles.”
Stone also spruiks Tasmanian pink lady apples at the special price of $2.80 a kilogram, saying "feed your family better, fresher, with spring fruit and veg from Coles".
The Complaint
A viewer complained to the board:
“This is wrong and not possible, I live in Tassie and my apple tree is dormant! These apples would have been in storage for MONTHS, they are not fresh … This ad is misleading and my wife would like a personal apology from Curtis (or cash).”
Admission from Coles
Coles responded, admitting its apples are harvested across Australia over a period of approximately two months during autumn, with the bulk sourced from Tasmania. It said the pink lady variety featured in the ad was harvested in the last half of April 2014.
The supermarket giant said it believed its apples can remain fresh because of its “advanced cold storage facilities”.
The company said:
“Coles’ view that produce can remain ‘fresh’ despite storage is consistent with the Macquarie Dictionary, which defines ‘fresh’ as retaining the original properties unimpaired; not deteriorated; not canned or frozen; not preserved by pickling, salting, drying, etc.”
But while the board was satisfied the use of the word “fresh” in relation to apples was not itself misleading, it did take issue to the ad’s reference to the terms “spring”.
It found the commercial implied the apples were spring fruit and had been freshly picked during the spring season.
Comment by the ASB
The ASB said:
“The board considered that the likely interpretation of the advertisement by the average consumer would be that the Tasmanian apples being promoted as fresh this Spring would have been freshly picked in recent weeks and not over 3 months ago.”
Statement from Coles
Coles released a statement saying the ad aired in Tasmania for three days and won’t be aired again:
“We’re committed to supporting local growers and offering our customers great quality fresh produce throughout the year … We only sell Aussie grown apples in our stores with the bulk of apples coming from Tasmanian growers.”
Potential for Legal Action from the ACCC
There has been no legal action taken against the misleading claims, but TressCox partner Alistair Little said there was potential the Australian Competition and Consumer Commission (the ACCC) may act.
Mr Little went on to say:
“Coles are certainly trying to promote products as hard as they can, but the language chosen has gone further than it should have.”
Little says the matter has been dealt with by the Advertising Standards Board, and while the board has no legal power to compel a company to remove an ad, businesses do generally comply with any decisions made.
He says the lesson for small business owners is that they should avoid using specific terms and stick to more general credence claims in their advertising. He says the use of the term “fresh” was broad enough to not be considered misleading, but the term “spring” implied the apples had indeed been picked in spring.
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