Counting One’s Chickens? The Free Range Debate

It has been a big month for the egg and poultry industry in Western Australia and across the nation.

A renewed call has been made for state legislation to be introduced in Western Australia tightening the rules around product labelling of eggs, by imposing a limit of 1,500 chickens per hectare for eggs to qualify as “free range.”  Meanwhile, Woolworths has announced that it will phase out the sale of all caged whole eggs sold in-store by 2018.  Now there are concerns that an increase in free range egg production may lead to an increased risk of avian influenza.

The free range debate is nothing new, but it is certainly gathering steam.  In New South Wales, consumer group Choice has made a “super complaint” to the NSW Fair Trading Minister, calling for an investigation into whether free range claims are genuine.

One argument against the introduction of state legislation is that there is already a national legislative scheme in operation that governs misleading and deceptive conduct in product labelling, under the Australian Consumer Law.  Amongst other things, this law prohibits a person from making, in trade or commerce in connection with the supply of goods, a false or misleading representation that goods are of a particular standard or quality or have had a particular history.   Further, conduct in trade or commerce that is liable to mislead the public as to the nature or characteristics of goods is also prohibited.

The consumer law watchdog, the Australian Competition and Consumer Commission, has listed credence claims (claims that consumers cannot easily verify for themselves) as a new priority area.  The ACCC has recognised that consumers are often prepared to pay more for products that make credence claims which match their values.  Does this mean that in an appropriate case the ACCC might step into the free range debate?

In fact, ACCC action is not unprecedented.  In September 2011, the ACCC commenced proceedings in the Federal Court against various parties in relation to the use of the phrase “free to roam” and variants of it appearing on packaging, in advertising and in publications in connection with the supply of chicken meat.

The Federal Court handed down its decision in July this year.  It found that the ordinary and natural meaning of the phrase “free to roam” when applied to chickens is “the largely uninhibited ability of the chickens to move around at will in an aimless manner.”  Chickens were not “free to roam” in large barns or sheds in circumstances where, at times in their growth cycle, the chickens “could not move more than a metre or so (at most) without having their further movement obstructed by a barrier of clustered birds.”

It would seem that Australian chickens are in the process of flying the coop.  What remains to be seen is how far they will be permitted to fly, and what this will mean more generally for a sustainable egg and poultry industry in Australia in the years to come.

For more information on this update or any other agribusiness matter please call Katrina Welch or Tom Darbyshire on (08) 9321 3755.

The information published on this website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.