Fair Comparisons

6 Fair Comparisons

Advertisements containing comparisons with other advertisers, or other products, are permissible in the interest of vigorous competition and public information provided that:

a) the principles of fair competition are respected and the comparisons used are not likely to mislead listeners about either product;

b) points of comparison are based on fairly selected facts which can be substantiated;

c) comparisons chosen do not give the advertiser an artificial advantage over his competitor;

d) they comply with Section 2, Rule 7 Denigration.

In order to implement the Comparative Advertising Directive (97/55/EC), which amended the Misleading Advertisements Directive (84/450/EEC), the UK has amended the Control of Misleading Advertisements Regulations 1988, by means of the Control of Misleading Advertisements (Amendment) Regulations 2000. In doing so the obligation in the Regulations on the broadcast regulators, now including the ASA, to control misleading advertisements was extended to the control of comparative advertisements, in accordance with the Directive. This has made it necessary to change the relevant parts of this Advertising Code to reflect the requirements of the Directive, as the Regulations do in respect of non-broadcast advertisements.

The Regulations make it clear that comparative advertising is permissible, in the interests of competition and public information, but they require that comparative advertising (which is defined to mean any advertising which "explicitly or by implication" "identifies a competitor or goods or services offered by a competitor") shall, as far as the comparison is concerned, be permitted only when the following conditions are met:

a) it is not misleading;

b) it compares goods or services meeting the same needs or intended for the same purpose;

c) it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price;

d) it does not create confusion in the market place between the advertiser and a competitor or between the advertiser’s trade marks, trade names, other distinguishing marks, goods or services and those of a competitor;

e) it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities or circumstances of a competitor;

f) for products with designation of origin, it relates in each case to products with the same designation;

g) it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products;

h) it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name.

The Regulations also state in paragraph 4A (2) that: "in the case of a comparative advertisement referring to a special offer, such an advertisement is not permitted unless it indicates in a clear and unequivocal way the date on which the offer ends or, where appropriate, that the special offer is subject to the availability of the goods or services and, where the special offer has not yet begun, the date of the start of the period during which the special price or other specific conditions shall apply."