Conclusion
36 The case of the applicant is founded on the contention that the word "now" implies, in the various contexts in which it appears in the advertising and packaging, a change from some earlier circumstance or position. I did not understand counsel for the respondents to put this in issue as a general proposition and it is, in my opinion, correct. That is, the word "now" would be likely, in most situations, to be taken to imply change in relation to the fibre content of "Wonder White". The central question is what is conveyed about the nature of the change and with what is any comparison being made.
37 Before considering the advertising and packaging in detail reference should be made to the class who might be misled or deceived by the impugned conduct. The broadest description of the class is the consumers of bread. However, in my opinion, the relevant class can more appropriately be described as consumers of bread who have some interest in the fibre content of bread. In the present proceedings, as I understand the case of the applicant, the impugned conduct is said to result in the purchase of bread (immediately or at some later point) by consumers who misapprehend (or are lead by others to misapprehend) the true position because, putting it at its lowest, the advertising and packaging is ambiguous as to what really is the fibre content of "Wonder White". That would arise in circumstances where the language used (and, in particular, the phrase "Now Twice the Fibre*" on the front of the new packaging) conveyed some meaning to the consumer who acted (immediately or subsequently) on the message so conveyed.
38 I first consider the bus advertising. In my opinion, there is little reason to doubt, with one qualification, that the message conveyed by the posters is clear. The qualification is the alleged meaninglessness of the expression "regular white bread" in the context of the comparison implied by the entire message in the advertisement. This is a matter I consider later. It is probable that a consumer who saw and had some interest in the words "twice the fibre" on either the external or internal posters would also see the words "of regular white bread". Accordingly it would be relatively clear to the consumer that the comparison the words "now" and "twice" invited was between "Wonder White" as it is presently manufactured and regular white bread. Counsel for the applicant suggested that a consumer might, as a bus passed by, see only the words "twice the fibre" (and, I infer, be influenced by them) on the external poster on the side of the bus and not see the words "of regular white bread" (and thus be misled or deceived). This possibility is so remote as to not warrant detailed consideration. In my opinion, the use of the posters does not involve misleading or deceptive conduct and is not of that character even if considered together with the other impugned conduct.
39 I next consider the television advertisement. It was submitted by the applicant that television advertisements are not intended to be logically analysed. Rather they are intended to make an impression on the consumer. Counsel emphasised the repeated use of the word "now". This was said to suggest a recent change to the "Wonder White". As indicated earlier in a more general context, the word "now" could well be understood to imply change. I accept the boys in the advertisement act as if the bread has changed. I also accept, as counsel for the applicant submitted, that the suggestion by the boys that the fibre in the bread would be twice as easy to find might, if scrutinised, lead to the conclusion that the bread now contained twice as much fibre as it had previously contained (it is twice as easy to find because there is twice the amount). However scrutiny of that type involves logical analysis that the authorities eschew. The clear impression created, in my opinion, by the advertisement viewed in its entirety is of change resulting in a comparison (as to fibre content) between "Wonder White" and regular white bread. Not only is this comparison made, at the beginning of the advertisement, visually on the billboard but it is, significantly, also a comparison made by the words spoken by one boy which set the scene for what follows. Also of significance is that the comparison with the fibre content of regular white bread is made in the only spoken words (the voice over) which contain anything that might be taken by a consumer to be an informed commentary on the fibre content of "Wonder White" (in contrast to the antics of the two boys). The publication of the television advertisement does not involve, in my opinion, misleading or deceptive conduct and, like the bus advertising, is not of that character if considered together with the other impugned conduct.
40 Different issues arise in relation to the packaging. Counsel for the respondents submitted that the effect of the packaging should be considered in relation to two classes of consumers. It is an approach I consider appropriate in the circumstances. I do not, however, proceed on the assumption (which I understood counsel for the respondent invited me to act on) that consumers viewing the new packaging in shops and supermarkets would have seen (and be influenced by) the television advertisement considered in the preceding paragraphs. That is not to say, however, that many consumers would not have seen the television advertising. It is probable significant numbers would have.
41 The first class of consumers identified by counsel for the respondents is those who are familiar with the "Wonder White" product. Of these consumers, it was submitted, some would not be interested in the fibre content of "Wonder White", and would probably not read or at least be influenced by the contentious words on the packaging ("Now Twice the Fibre*"). I agree. The other consumers in this class are those who are interested in the fibre content of the product. I accept, as submitted by counsel for the respondents, that members of this group may be conscious of the fact, when reading the new packaging, that the old packaging described the product as being "HIGH IN FIBRE" or at least would be aware that it was a high fibre bread. The important question is whether it is likely that the message conveyed by the words "Now Twice the Fibre*" on the new packaging would mislead or deceive these members of this class.
42 Counsel for the respondents submitted that these consumers would read the message and note the asterisk and, in the result, read the explanatory reference to "of regular white bread". Counsel for the applicant submitted that (both as to this group of consumers and more generally) there would be children and consumers who would not pursue the significance of the asterisk (or not notice it) and not be led to or look for the explanatory material. In my opinion, it is unlikely that this would be so in relation to the consumers I am presently considering. That is, consumers with an interest in the fibre content of bread who were familiar with the "Wonder White" product. I see no reason, in the present case, to differentiate between adults and children. Any child who was sufficiently discerning to take note of the reference to "Now Twice the Fibre*" on the new packaging (whether they are in large numbers may be doubted) would be as likely to be interested in the import of this statement as an adult. A consumer of the type presently under consideration (whether child or adult) who was familiar with "Wonder White" as a high fibre bread and who read the contentious words would see the asterisk, which is prominent, and appreciate its significance and also see immediately, or seek out, the contiguous words "of regular white bread". Indeed it is probable, in my opinion, that many such consumers would, when first confronted with the new packaging, take the trouble of ascertaining what the contentious words meant and what the fibre content of the bread was by looking at information contained on the remainder of the package. Moreover, it is also probable that many consumers of the type under consideration would have seen and been influenced by the promotional material referred to in par 24 above. That material makes clear that "Wonder White" in the new packaging was claimed to be twice the fibre of regular bread. Significant numbers would also have seen the television advertising.
43 What then of consumers who were not familiar with the "Wonder White" product? Again those who were not interested in the fibre content of bread would not register the significance of, or ignore, the words "Now Twice the Fibre". Of those who had any interest in the fibre content of bread many would, in my opinion, behave in the same way as the consumers discussed in the preceding paragraph and would also have seen the point of sale promotional material and/or the television advertising. Some may not and might treat the contentious words as signifying the product was high in fibre. But that is likely to be all the words would be taken to mean. If they were not familiar with the earlier product the word "now" would be unlikely to evoke a comparison with that product. It is unlikely that any of these latter groups would particularly focus on the word "now", appreciate that some form of temporal comparison was being made and be misled or deceived in any of the first four ways identified in the applicant's pleadings.
44 I finally consider the suggestion that the use of the words "of regular white bread" gives rise to a meaningless comparison in any relevant sense. I accept that the evidence does not establish there is a standard to which one can point that identifies with any precision what is regular white bread and which identifies what the fibre content of such bread might be (other than as an approximate range). However, as I indicated earlier in these reasons, documents tendered by the respondents do show that the expression "regular white bread" is in common usage and used to describe bread which has, as one of its characteristics, no added fibre. That is, fibre added specifically to increase the fibre content beyond the fibre content deriving from the traditional constituent elements used to make bread. I consider the expression "regular white bread" would be so understood by consumers. The fibre content of such bread is somewhere in a range commencing at approximately 2.7g and concluding at approximately 3.0g per 100g. No greater precision is necessary, in my opinion, to make a meaningful comparison between white bread with no added fibre and white bread which does have added fibre. Moreover the use of the word "regular" to describe white bread with no added fibre is, having regard to the respondents' evidence, unexceptionable. Even if, as is likely to be the case, many consumers would not know the fibre content of white bread with no added fibre (viz regular white bread) that does not result in the comparison invited by the advertising and packaging being misleading or deceptive. Consumers are being told what broadly is the position.
45 Implicit in what has been said to this point, is a rejection of the submission of the applicant that, at the very least, the words "Now Twice the Fibre" on the front face of the new packaging will be taken by some consumers as meaning that "Wonder White" in that packaging is twice the fibre of "Wonder White" that has previously been offered for sale. If so, and the words are at least ambiguous, then the Court must consider the effect of all the various meanings including the comparison with the earlier product. I must acknowledge there is a superficial or initial attractiveness attending this submission. That is, the words taken only at face value could possibly convey a meaning raising a comparison between the earlier and new "Wonder White" product. It may be accepted that the application of Part V raises considerations of the public interest and the protection of consumers. However, in the present matter, the proceedings are brought by a commercial competitor of the respondents with a view to obtaining orders, inter alia, restraining the respondents from continuing a marketing campaign publicly commenced a little over a month ago. There is evidence which shows the cost of the campaign is considerable. As counsel for the respondents pointed out, there is no evidence of consumer complaint (indeed there is some evidence there has been none) nor any suggestion, in the evidence, of interest by any regulatory authority in the conduct complained of by the applicant.
46 Nevertheless, the Court's task is to evaluate the material objectively. Is it probable or likely that at least some consumers would view the contentious words, in context, as raising a comparison between the product carrying those words and some earlier version of the product and, so viewed, influence their conduct? In my opinion, it is, on balance, not probable or likely. The class who might view the words in this way and be influenced by them would be those who had some interest in the fibre content of bread. As already discussed, the asterisk is prominent and would be taken to signify some qualification or explanation of the words used. One could expect a consumer interested in fibre content to seek out the qualification or explanation. Not only is the explanation within 2cm of the words on the package (albeit in much smaller type) but it is repeated elsewhere on the packaging. It is an explanation which, in my opinion, would come to the attention of a consumer who might otherwise, by superficial initial impression or reaction, have viewed the product bearing the contentious words as containing twice the fibre of earlier versions of the same product. Moreover the effect of the point of sale promotional material and the television advertising cannot be discounted entirely. It is, as discussed earlier, likely that many consumers who would see the new packaging in a store would also see the promotional material referred to in par 24 which contains a clear message. The same is so of the television advertising.
47 The promotion and sale of "Wonder White" in the new packaging does not involve conduct which is misleading or deceptive or likely to mislead or deceive.
48 For the preceding reasons, I am not satisfied that the applicant has demonstrated that the respondents have engaged in conduct in contravention of s 52. For the same reasons the applicant has not demonstrated contravention of ss 53(a) or 55. I dismiss the application and order the applicant to pay the respondents' costs. No orders are necessary in relation to the cross-claim which would have assumed relevance only if the applicant had succeeded in its application.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.