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Three Recent Cases Highlight Risks of Using Claims Of “Fresh” In Advertising

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

Not So “Fresh” Label and Advertising Claims Can Result In Litigation

“Fresh” is quickly becoming a not-so-fresh battleground for consumer-brought false advertising lawsuits as we see more and more actions challenging the use of “fresh” in advertising and labels for food and beverages.

Most recently, a federal district court in Illinois certified a class of consumers who claim that they were misled into believing that single-serving coffee cartridges contained “fresh” coffee, when in reality it was instant coffee. In another case filed this year in New Jersey, Whole Foods and Wegmans were sued for using the terms “baked fresh” or “fresh baked” in connection with their breads – the lawsuit claimed that these phrases indicated that the breads were made from scratch when instead the products were simply re-heated in the store (the suit was since dismissed on “standing” and injury issues).  And, an Australian court recently ruled that the Coles supermarkets could not use “Freshly Baked” to describe bread that

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