THE ACCC has had an early victory in its legal action to stop the chicken meat industry using the term “free to roam”. The producer Turi Foods decided it was cheaper to pay $100,000 in penalties than potentially a lot more on lawyers.
This was a business decision and has no implications for the merits of the case. So far at least, the other producers and the Australian Chicken Meat Federation are standing their ground.
I hope they fight it all the way, because they deserve to win handsomely. The role of the ACCC is to prevent anti-competitive conduct and protect consumers. This action has nothing to do with competition and offers no benefits to consumers.
The ACCC claims it is misleading or deceptive to use the term “free to roam” in advertising and packaging because it implies meat chickens are raised in barns in which they have substantial space available and can roam around freely. It says the population density of meat chickens raised in barns precludes such movement.
It is a simple fact that chickens are raised in barns and can move around. Indeed, anyone viewing a pen will see plenty of free space as the chickens frequently bunch up. Quite often those in the middle of a pack cannot roam freely at that particular moment, while others on the edge have plenty of space. Later, when the pack forms somewhere else, the situation may be reversed.
The ACCC case will focus on average space per bird and whether that allows them to move ‘freely’. From that perspective much depends on the age of the chickens. When they are first introduced to barns at a day old, their useable space is quite different from when they reach slaughter weight six or seven weeks later. Animal rights advocates, including Lawyers for Animals which lobbied the ACCC to launch the action, maintain the chickens have the equivalent of an A4 page by that stage.
The chicken meat industry adopted the ‘free to roam’ term in an attempt to indicate that chickens are raised in barns. A large majority of the public wrongly assumes meat chickens are kept in cages, like layers. It is a misconception similar to the belief that they are treated with hormones. Very likely, chicken meat consumption would increase if more of the public knew that meat chickens were raised in barns and not given hormones.
If the ACCC prevails, either in court or by financially outlasting the producers, consumers will continue to believe meat chickens are raised in cages. And chickens will still be raised in barns with the same space they have now.
The ACCC seems to be staffed by lawyers who have little understanding of the real world. This was clearly evident in the Metcash/Franklins case, in which the Federal Court found they were unable to properly define a market. There are plenty of other examples as well.
But ignorance never seems to inhibit their confidence. In this case they are so certain of their position that they are seeking multiple remedies, including pecuniary penalties. You could be forgiven for thinking producers had been promising a free massage and law degree with every frozen chicken, instead of merely attempting to correct a common misconception.
Assuming it gets to a court room, the ACCC will be obliged to present evidence to prove on a balance of probabilities that chickens require more space than they are currently provided to be reasonably said to be “free to roam”. That will require the views of animal industry experts, which obviously excludes Lawyers for Animals. Much will depend on whether the ACCC can convince the court that human notions of space are applicable to chickens, because ultimately that is what the case is about.
I suspect the court will throw out the case. To do otherwise would require it to offer guidance as to how much more space chickens require for the term to be legitimately used. For very sound reasons, judges are extremely reluctant to become involved in such issues.
No matter how it ends, the case is yet another manifestation of the yawning gap between the realities of food production and the perceptions of consumers. It also shows how committed activists can co-opt regulators to impose their agenda, using taxpayers’ money.
David Leyonhjelm is an agribusiness consultant with Baron Strategic Services.
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