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

Birmingham = Birmingham City Council, which has the Primary Authority relationship with M&S for trading standards.

14 April 2025: We asked Birmingham for an update on the progress they have made with our complaint. As the latest evidence in support of our complaint, we submitted photos of apparently fully-baked ciabatta rolls, which had arrived at an M&S store deep frozen. Two months to the day since production, they were to be warmed up for a short time to defrost them and crisp the crust.

Birmingham replied: 'I’d like to reassure you that this matter remains on my radar. On 20th March, I contacted the Food Standards Agency (FSA) to seek clarification on a few points. As I hadn’t received a response, I followed up with a further email on 9th April. The FSA has since confirmed that they are in the process of formulating a response. I’m hopeful that I’ll hear back from them shortly, after which I’ll be in a position to liaise with M&S.'

21 March 2025: We asked Birmingham CC for an update on the progress they have made with our complaint.

A trading standards offcier replied: 'My colleague and I have recently taken over as Primary Authority officers for the M&S Primary Authority Partnership. Yes I have seen your emails sent to the generic M&S inbox and I am looking into this further.'

12 March 2025: We asked Birmingham CC for an update on the progress they have made with our complaint.

3 March 2025: We asked Birmingham CC for an update on the progress they have made with our complaint.

5 February 2025: We asked Birmingham CC for an update on the progress they have made with our complaint.

18 November 2024: We asked Birmingham CC for answers to the questions we sent on 2 September, and for an update on their progress with this case.

25 October 2024: We asked Birmingham CC for an update on the progress they have made on this case in the past seven and half weeks.

2 September 2024: We replied to Birmingham CC: 'Thank you for forwarding the defence that M&S sent to you in response to the Real Bread Campaign’s complaint that you are investigating.

To summarise the key point we are making: baked/baking, which is what M&S claims it does in store (supported by the visual cues that we outlined), is not the same as RE-baked/RE-baking, which is what M&S does in store. 

As an analogy, let’s say pies are manufactured at an industrial unit, chilled or frozen, transported to a retail outlet, and then re-heated at a later date in store shortly before sale. Marketing the pies using claims such as ‘cooked in store today’, ‘cooking now’ or ‘always sold on the day they are cooked’ would be misleading. 

Can you be certain that M&S’s marketing of re-baked products does not mislead any shoppers, as the FSA guidance states it may, and so does not infringe the relevant regulations? If you are not certain, then what action will you take?

We look forward to your decision on this case.'

29 August 2024: Birmingham CC responded: 'Please see below the response from M&S to the maters in which you have raised.

"As was the case in the previous correspondence, we do not believe that we are in breach of our obligations under consumer protection legislation as the Real Bread Campaign suggest in their campaign against the retail bakery industry. We set out our position on the matters raised as follows.

1.    Nature of Baking Practices in 'The Bakery' Section:
o Claim: "Nothing in ‘The Bakery’ section of any M&S store is made from scratch on site."
o Response: M&S utilizes a combination of baking methods to ensure the highest quality and freshness of products for our customers. While it is true that some products are partially prepared off-site, all products marketed as "oven baked in store today" are indeed baked in[1]store on the day they are sold. This process involves final baking steps that ensure freshness and quality, consistent with industry standards.
o Items which are brought into store for baking are not ready for sale to the consumer, they require a high heat bake to finish to both cook the dough and achieve the required finish on the baked goods.
o We make no claim that the products are ‘made from scratch on site’ nor do we imply this. See below.

2.    Manufacture and Re-baking of Products:
o Claim: "No ‘bread’ products are freshly baked in-store: all are manufactured elsewhere and merely re-baked in-store."
o Response: Had we stated, “fresh bread”, this could potentially be interpreted as a misleading term. We do not state this.
o The term "freshly baked" accurately describes products that undergo the final baking process in-store. This practice is common in the industry and ensures that customers receive warm, freshly baked goods. The initial preparation off-site allows us to maintain consistent quality and safety standards across our 700+ bakeries.

3.    Frozen and Re-baked Products:
o Claim: "Some products are frozen after manufacture, then re-baked at a later date."
o Response: M&S clearly indicates when products have been previously frozen on packaging labels, in compliance with Regulation (EC) No 178/2002 and Regulation (EU) No 1169/2011. Annex 6 of EU No 1169/2011 Part A, paragraph 1 and 2, highlight that there is no requirement to denote previously frozen products where freezing form a technologically necessary step: 1. Baking where required is to ensure a food safe product is achieved as the unit is not in an edible state at delivery. 2. There is no negative impact on the safety or quality – the post[1]freeze baking of the unfinished product makes the product safe for consumption. The process has no impact on the quality of the finished good as the product is designed to factor each and every process.
o The freezing process is a standard industry practice that preserves quality and extends shelf life without compromising the final product’s integrity when baked in-store.

4.    Origin of Products:
o Claim: "One or more of these products are manufactured outside the UK."
o Response: M&S is transparent about the origins of our bakery products.
o For instance, as highlighted by in the complaint, we proudly state that our croissants are made in France. Additionally, we have Portuguese Custard Tarts, denoting the Portuguese origin as the product is from Portugal.
o We ensure all labelling complies with UK and EU regulations, clearly indicating the country of origin where applicable. Any suggestion of non[1]compliance with fortification requirements is taken seriously, and we ensure all products meet the necessary standards.

5.    Marketing and Signage Claims:
o Claim: "M&S markets ‘The Bakery’ using claims such as ‘oven baked in store today’, ‘baking now’, ‘always sold on the day they are baked’."
o Response: These marketing claims are statements of fact and reflect the reality of our in-store baking processes.
o Products part-baked off-site undergo a final baking process in-store, ensuring the product meets our high standards on the day they are sold. This practice aligns with current Food Standards Agency (FSA) guidance and industry norms.

6.    Response to Customer Queries:
o Claim: "M&S did not respond to specific customer service queries within the expected timeframe."
o Response: M&S strives to respond to all customer inquiries promptly. We regret any delays and are actively working to ensure our customer service processes are timely and informative. The complexity of the queries required thorough investigation to provide accurate and detailed responses.
o In future, we suggest all correspondence from the Real Bread Campaign is sent directly to our Primary Authority.

7.    Misleading Marketing Allegations:
o Claim: "M&S’s marketing practices mislead consumers about the freshness and origin of bakery products."
o Response: M&S is committed to truthful marketing and transparent communication with our customers. M&S is also the most trusted retailer and brand in the UK, voted by YouGov and consumers in the UK over multiple years and locations.
o Our use of terms such as "freshly baked" and "oven baked in store today" accurately reflects our baking processes – an item coming out of an oven after being baked is freshly baked and these products are oven baked in store on the day.
o Whilst we may create product with shelf life on, it does not detract from the statement that the bakery is baking items on the day they are offered to consumers. Where we are providing goods with shelf-life beyond the day of baking, this is entirely the right thing to do in the current climate and concerns around food waste.
o Our bakery marketing terms are open and transparent – customers can clearly see our bakery operations in-store. We additionally have colleagues working in the area to speak with customers.
o Customers can see that we are placing materials into the oven and not forming dough – this is all clearly visible.

8.    Environmental and Socio-Economic Impact:
o Claim: "Re-baking has a negative environmental impact and creates unfair competition with local bakeries."
o Response: M&S is dedicated to sustainability and minimizing our environmental footprint.
o Our baking processes are designed to be energy-efficient while ensuring product quality. Additionally, our pricing and marketing strategies are designed to provide value to our customers while fostering a competitive but fair market environment.
o Referencing to creating some products which will have shelf life on highlights M&S’s commitment to the environment and avoiding waste.
o Referencing Socio-economic impact, having the process we have creates thousands of jobs – through the part-bake manufacturing, the transportation, storage and store bakery teams.
o We have also taken the proactive steps of developing a process where our unsold baguettes can be used to make frozen garlic bread. In addition, we have pioneered food redistribution working with partners like Neighbourly, donating circa 25 million units of edible surplus in the last year.

We trust this response addresses the concerns raised and demonstrates our commitment to compliance with consumer protection legislation. M&S remains dedicated to maintaining the highest standards of quality, transparency, and customer satisfaction. We look forward to continuing our dialogue and addressing any further questions you may have."'

22 August 2024: We asked Birmingham CC for an update on their investigation and an ETA of a full reply.

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.)"