Legal development

Dont go bacon my heart

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    What you need to do

    • The Ad Standards Community Panel found that using the phrase "Australia's Favourite" with depictions of an Australian map did not misrepresent the origin of the product but related to the popularity of it.

    What you need to know

    • Confirm that packaging and marketing of products complies with Australia's laws governing country of origin information and labelling.
    • Ensure that any allusions to product characteristics are truthful and honest, and would not mislead or deceive the average consumer.

    In a recent decision, the Advertising Standards Community Panel (the Panel) considered whether the phrase "Australia's Favourite Bacon" could be interpreted as an indication of the origin of the bacon product being promoted in a television advertisement by Primo Foods (Primo).

    The advertisement depicted a group of people standing on a beach and as the camera zoomed out, showed the crowd outlined by the shape of Australia before the Primo Foods logo and the words "Australia's Favourite Bacon" appeared. The advertisement also contained a voiceover throughout which included the assertion that Primo's bacon product is "Australia's favourite bacon".

    While the complaint was ultimately dismissed, it still provides food for thought around the use of marketing tools in advertising.

    What was the complaint about?

    The complainants asserted that the advertisement dishonestly misleads and deceives viewers into believing that Primo's bacon product is an Australian made product and as such, breaches section 2.1 of the Australian Association of National Advertiser's (AANA's) Food and Beverage Advertising Code (the Code).

    Section 2.1 of the Code provides that "Advertising or Marketing Communication for Food or Beverage Products shall be truthful and honest, shall not be or be designed to be misleading or deceptive or otherwise contravene Prevailing Community Standards…".

    The complainants submitted that because Primo's bacon product contains less than 25% Australian content, it is misleading to label it as "Australia's Favourite Bacon" and include a map of Australia with the Primo Foods logo in it, because this infers that the product is Australian made.

    What did Primo say?

    Primo responded to the complaint by asserting that it did not make or attempt to make a country of origin claim in respect of its bacon product, but was instead claiming that its product is the most preferred bacon product by Australians, when compared to all other bacon brands. Primo also stated that the phrase "Australia's Favourite" is a "common marketing tool" used to indicate that a product is the most preferred by consumers in Australia and to demonstrate customer preference based on the highest market share.

    Importantly, Primo submitted evidence to substantiate the claim that its product is the most preferred by consumers, by using quantitative market share data to demonstrate that it did have the highest market share of bacon sales for its bacon product.

    Primo also asserted that the Panel had dismissed a highly similar complaint made against it previously and made submissions on its compliance with the AANA's Code of Ethics.

    The Panel's decision

    The Panel referred to the lack of any discussion of origin in the advertisement and agreed with Primo's assertion that the phrase "Australia's Favourite Bacon" suggests consumer preference rather than the product's origin.

    The Panel also noted the Practice Note for section 2.1 of the Code which states that the Panel should not attempt to apply legal tests when determining whether an advertisement is truthful or honest, or designed to mislead or deceive, but rather they should focus on whether the information likely to be taken from the advertisement by the average consumer in the target market, would be regarded as truthful and honest.

    When applying this test, the Panel found that the average consumer would interpret the advertisement as saying that Primo's bacon product is popular, not that it is Australian made.

    While the Panel's decisions are not binding, this case provides good guidance for advertisers to follow when considering using phrases such as "Australia's Favourite" to ensure they are not misleading or deceiving consumers. It also reassures advertisers that they can use these tools with confidence when the have the data to substantiate their claims and have otherwise ensured that they are not falling foul of laws applying to country of origin information and labelling.


    Authors: Daele Tyler, Lawyer; and Kellech Smith, Partner.

    The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
    Readers should take legal advice before applying it to specific issues or transactions.


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