In this post, we take a look at three recent decisions in which food industry defendants were accused of falsely advertising their food products as “fresh”. As discussed in our prior post, a clear-cut, consensus definition for “fresh” has yet to emerge in the United States, leaving food and beverage companies exposed to significant false advertising litigation. These three decisions highlight the risks of using “fresh” without a full understanding of what regulators and the court have previously considered truthful or misleading uses of the term.

ACCC v. Coles Supermarkets

The use of “fresh” to describe “fresh baked” bread has become the subject of litigation. At least one foreign court definitively ruled that “fresh baked” means baked from dough, and not re-heating fully or partially baked bread.

In 2014, Australia’s Federal Court fined Coles Supermarkets $2.5 million for improperly advertising bread as “Baked Fresh” and “Freshly