Freshly faked by M&S?

On 25 June 2024, the Real Bread Campaign submitted a complaint to Birmingham City Council, Marks & Spencer's Primary Authority for trading standards.

The Campaign believes that: 

• Nothing in ‘The Bakery’ section of any M&S store is made from scratch on site.
• No ‘bread’ products are freshly baked in-store: all are manufactured elsewhere and merely re-baked in-store.
• Some products are frozen after manufacture, to be re-baked at a later date.
• One or more of these products are manufactured outside the UK.

Despite this, M&S markets ‘The Bakery’ using claims including: ‘oven baked in store today’, ‘baking now’, ‘always sold on the day they are baked’ on window displays, product packaging and in-store signage. 

To reinforce these messages, the company displays prefabricated products in wicker baskets on wooden shelving, as if they were freshly made at a craft/artisan bakery. This all compounds the company choosing to withhold the facts above from customers, or at least not to declare them with equal/any prominence.

The Campaign believes, therefore, that M&S’s marketing is misleading and breaches consumer protection regulations.

To be clear, this complaint is not that M&S is making cheap products widely available, it is about how the company is marketing them. Dropping, or revising, the claims will not affect the price and availability of products.

Jump to updates

M&S silence

On 13 June 2024, the Campaign emailed the following questions to the M&S customer service team:

• How many stores does M&S operate in the UK?
• How many stores have a ‘The Bakery’ section?
• At how many of these stores are all bread products in 'The Bakery' made fresh from scratch on site?
• At how many of these stores are all bread products in 'The Bakery' made elsewhere and then re-baked in-store?
• At how many of these stores are bread products in ' The Bakery' section a mix of lines made and baked fresh from scratch on site, and lines made elsewhere and then re-baked in-store?
• Other than croissants (which M&S advertises as made in France) are any products sold in ‘The Bakery’ made outside the UK?
• If so, which ones and where?
• How does M&S make customers aware of these facts?

The Campaign added: ‘We have also received an email from someone advising us that at Teddington and Brooklands M&S: “You will find white and wholemeal on the shelves (baked in store) that is 3 days old. They batch bake and then place it into air sealed plastic boxes. If you ask nicely they will give a 'fresh baked today' loaf - which is how I am able to see loaves on the shelf with a date 3 days earlier!” What is your response to this?’

Despite the company’s 48-hour target response time, the Campaign had not received one by 18 June and so emailed again. M&S responded that the relevant department had been contacted, though not when the Campaign could expect a full reply. As of 25 June 2024 the Campaign still had not received any answers.

This isn't just a loaf tanning salon...

Still current FSA guidance states: ‘Terms such as “freshly baked”, “baked in store” and “oven fresh” may mislead consumers into believing that they are being offered products that have been freshly produced on site from basic raw materials. Some stores sell bread made from part-baked products that have been packed in an inert atmosphere or frozen off-site then “baked off” at in-store bakeries. Use of terms like “freshly baked”, “baked in store” and “oven fresh” on these products could potentially infringe the general legal provisions…’ 

These provisions include  Regulation (EC) No 178/2002, which states that ‘it is a general principle of food law to provide a basis for consumers to make informed choices in relation to food they consume and to prevent any practices that may mislead the consumer.’ More specifically, Regulation (EU) No 1169/2011 on the provision of food information to consumers requires that ‘food information shall not be misleading, particularly: (a) as to the characteristics of the food and, in particular, as to its nature, identity, properties, composition, quantity, durability, country of origin or place of provenance, method of manufacture or production.’

M&S markets ‘The Bakery’ products using claims including ‘oven baked in store today’, ‘baking now’, ‘always sold on the day they are baked’. These are likely to leave or lead the average consumer to understand that bread is made from scratch in-store on the day it is sold.

The Campaign understands the truth is that all ‘bread’ products displayed in ‘The Bakery’ are manufactured and baked at central production units, chilled or frozen, shipped to each store and then merely loaded into what the Campaign calls loaf tanning salons - ovens in which they’re merely re-baked to brown and crisp the crust – at a later date.

According to one report the Campaign has received (see above), in some cases the pre-made products might even be sold after the day on which they are re-baked.

Oven baked…on a Welsh industrial estate

As reported by The Sun in May 2023, an M&S worker revealed that loaves “were sent partly-baked and frozen, which means bakers don’t have to spend hours kneading and proving the dough before it goes into the oven. The loaves spent around eight minutes in the industrial-size ovens before going onto the shelves warm.”

When the Campaign asked at an M&S in Beckenham this June 2024, the reply was that all ‘bread’ in ‘The Bakery’ was brought in frozen and re-baked.
This confirms what was already occurring back in 2021, when British Baker reported: “M&S operates its in-store bakery on a bake-off basis with goods delivered part-baked from suppliers.” In 2023, the same publication noted that products in the ‘M&S Collection Sourdough’ range were “made by Jones Village Bakery at its state-of-the-art production facility in Wrexham.” 

M&S chooses not to declare these facts on product packaging or shelf / in-store displays, which the Campaign believes is misleading by omission. While signs in M&S stores proudly boast of ‘croissants made in France’, the Campaign has seen no such signage admitting: ‘loaves manufactured on a 550 hectare industrial estate in north Wales.’

Only people who are prepared to spend time searching for information online and stumble across this article will learn that loaves sold by M&S are manufactured by a different company tens, or even hundreds, of miles away from their local store. The M&S website has a 400+ word article that waxes lyrical about dough being “folded several times by hand” and the factory being “surrounded by six acres of woodland [that] is home to owls, buzzards and endangered grizzled skipper butterflies.” Even then, M&S withholds the less picturesque reality of ‘The Village Bakery’ being a unit on the former site of a World War II bomb factory, despite this being about as relevant as birds and butterflies living on a site adjacent to the industrial estate.

Facts frozen out

Regulation (EC) No 178/2002 requires that: ‘The name of the food shall include or be accompanied by particulars as to the physical condition of the food or the specific treatment which it has undergone (for example, powdered, refrozen, freeze-dried, quick-frozen, concentrated, smoked) in all cases where omission of such information could mislead the purchaser.’ 

As noted above, M&S sells products that were made, baked and frozen by another company, then transported to and merely re-baked in M&S stores. The Campaign believes that doing so, without declaring at point of sale (or on its website) that this has taken place, breaches this regulation. The Campaign also believes this breaches section 6 on misleading omissions of The Consumer Protection from Unfair Trading Regulations 2008 in that ‘the commercial practice omits material information’, which M&S compounds by stating that such products are ‘oven baked in store today’ and ‘always sold on the day they are baked’.

Shoppers have the right to know if a product has been re-baked as the process uses around twice as much energy as baking a product once and so can have a negative environmental impact. Re-baking also has a negative impact on the quality of a product in that it is likely to stale more quickly than genuinely fresh bread that has only been baked once. This has potential for negative environmental impact as it increases the likelihood of food waste in the home, at a financial cost to the shopper.

Another factor is the local negative socio-economic impact. Unlike scratch baking (ie making from basic ingredients) in a store, a bake-off system requires low levels of skill and relatively little staff time. In other words, it makes skilled baker roles redundant in that store, while still competing with local bakeries that provide skilled jobs, which we believe offer greater job satisfaction.

Misleading merchandising? 

Article 16 of Regulation (EC) No 178/2002 requires that the: ‘presentation of food or feed, including their shape, appearance or packaging, the packaging materials used, the manner in which they are arranged and the setting in which they are displayed, and the information which is made available about them through whatever medium, shall not mislead consumers.’ 

M&S displays ‘The Bakery’ products in wicker baskets and on wooden shelving, of the type you often find in local bakeries, providing tongs for customers to select products and slide them into paper bags. At least one M&S store has a little bell beneath a large ‘baking now’ sign, which a staff member can ring to draw attention to, and reinforce, the claim above it. This merchandising is markedly different from the painted metal shelves used in the rest of the store.

The Campaign believes that M&S presenting prefabicated factory products as if freshly made in an artisan bakery breaches the regulation, particularly as these physical and visual cues reinforce - and are reinforced by – the ‘oven baked in store today’, ‘baking now’, ‘always sold on the day they are baked’ claims, in a mutually-amplifying echo chamber.

Unfair competition?

Benefitting from the economy of scale of centralised manufacture; the ability to profit from thousands of high margin, non-bakery items; and savings of not training and employing skilled bakers in stores, enables M&S to sell ‘The Bakery’ products at low prices. The company, however, still markets mass-produced, re-baked items using claims and merchandising that will lead the average consumer to believe the products have been freshly made from scratch on site by skilled bakers, as they are in small bakeries. 

The Campaign believes that M&S’s marketing represents unfair competition with these small, independent businesses that create skilled, meaningful jobs, and help to keep money circulating in local economies.

A long time ago in a factory far, far away

Regulation (EU) No 1169/2011 requires that: ‘The indication of the country of origin or of the place of provenance of a food should be provided whenever its absence is likely to mislead consumers as to the true country of origin or place of provenance of that product.’ The regulation goes on to state: ‘In all cases, the indication of country of origin or place of provenance should be provided in a manner which does not deceive the consumer and on the basis of clearly defined criteria which ensure a level playing field for industry and improve consumers’ understanding of the information related to the country of origin or place of provenance of a food.’

In addition to croissants made in France, the Campaign asks whether other products in ‘The Bakery’ are manufactured outside the UK, with M&S choosing not to declare this on labels or point of sale displays. The absence of so-called ‘fortificants’ (which by law have to be added to flour sold in the UK) from the ingredients list on M&S baguette bags suggests that the product is manufactured overseas. (Other possibilities being: M&S failing to meet labelling requirements; or selling a product that was manufactured in the UK from illegally-sold unfortified flour.)

If M&S is indeed selling products that were manufactured outside the UK, without disclosing their true origins, the company is depriving shoppers of important information that the Campaign believes further contributes to unfair competition with bakeries that make bread fresh from scratch in the UK. If M&S is misleading customers by omission in this way, the Campaign believes that the company’s claims and merchandising serve to reinforce the breach of regulations by stating and implying an alternative time, place and means of production.

See also

• Help us expose The (not so great) British Fake Off
• Freshly faked
• An Honest Crust Act: Updating and improving the Bread and Flour Regulations
• Are Supermarket Bloomers (Still) Pants?

Updates

27 June 2024: M&S replied: 'We have answered these questions accurately; we provide all the information we are legally required to, and from our experience, that most customers require. 

We are looking at technology that would bring instantly accessible information to customers' phones and hoping to roll this out in 2024/25.

We are aware of the flour fortification requirements and this product is made outside of the UK, so its composition is legal and the labelling is accurate. The baguettes are baked in store to achieve the quality of crust and colour we require.'

25 June 2024: Hours after we sent our complaint to Birmingham City Council, M&S sent the following reply to the email we sent to the company on 13 June 2024: "We have approximately 1,000 stores of which 600 have an in-store bakery. To drive quality and consistency all our bakeries are based on the same format/operation with a blend of baking from raw and bake off products. We believe our signage is open and honest for customers. The vast majority of our products are sourced from the UK unless there is a need to source from elsewhere for authenticity reasons, for example Viennoiserie from France or if a particular process is not available in the UK i.e. Pretzels. If customers have any questions about specific products such as ingredients, nutritional information, or origin, our bakery colleagues are on hand to help or they can always contact our customer services team."

We responded: 

"From what you have written, plus other evidence I’ve gathered, I understand that:

Nothing in ‘The Bakery’ section of any M&S store is made from scratch on site.
No ‘bread’ products are freshly baked in-store: all are manufactured elsewhere and merely re-baked in-store.
Between manufacture and being rebaked, some products are frozen.
A number of products sold in ‘The Bakery’ are manufactured outside the UK.
Rather than making any of this information instantly accessible to customers (printing it on shelf or packaging labels, for example) M&S chooses to create the unnecessary obstacle of customers having to find and ask a member of staff, call your customer service number, or fill in an online contact form – and then wait for an answer.

Are all of these points correct?

One product-specific question: By law, four so-called ‘fortificants’ have to be added to all non-wholemeal flour sold in the UK and listed on ingredients lists of products made using it. These ‘fortificants’ are absent from the ingredients list on M&S white baguette bags – photo attached. Is this because:

1. M&S has failed to meet legal labelling requirements.
2. The product is manufactured in the UK from illegally-sold unfortified non-wholemeal wheat flour.
3. The product is legally manufactured overseas, imported and merely re-baked in-store at a later date (rather than ‘oven baked in store today’ and ‘always sold on the day they are baked’ as the bag – and other in-store marketing – claims.)"