Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Broadly speaking, the purpose of comparisons is usually to compare quality (“X is better than Y”), price (“X is cheaper than Y”), performance (“X goes faster than Y”) or market share (“X is better selling than Y”). Of course, not all comparisons fall into those categories and some marketers do not name the product or company they are comparing with. Some comparisons are with a marketer’s own product and some are with products or services that are in different sectors or with which they do not compete. The Code deals with comparisons with identifiable competitors and/or their products and all other comparisons.
Comparisons with identifiable competitors should be between products meeting the same need or intended for the same purpose. They are allowed as long as they are based on objective criteria and are presented in a way that is unlikely to mislead (clause 18). The Code states that such comparisons must objectively compare one or more material, relevant, verifiable and representative feature of those products (Rule 3.35). In 2008, the ASA clarified what it meant by ‘verifiable’ in the context of basket of goods comparisons. In short, readers should have access to the information on which the comparison is made (ASDA Stores Ltd, 14 January 2009). See ‘Comparisons: Verifiability’.
Some products, such as those registered as having a “designation of origin” are treated slightly differently insofar as they can be compared only with other products with the same designation. (Rule 3.37).
Comparisons must not create confusion between the marketer and its competitors or between the marketer’s product, trade mark, trade name or other distinguishing mark and that of a competitor (Rule 3.36).
Marketers do not need to identify explicitly the competitor or product that they are comparing with to be subject to the rules on comparisons. If a market is small, highly specialised or is dominated by a few major players, arguably the intended competitor(s) are clear, especially if the ad is targeted at a trade, rather than public, audience. In 2008, a member of the public complained about the claim “The most generous rewards programme…” in an ad that named M&S and John Lewis. He objected that BHS offered a more generous rewards programme. Although the marketers did not name BHS, the ASA considered the ad breached clause 18.1 (Rule 3.33 as it now is) because BHS offered more points per pound and more vouchers to redeem in store than the advertiser (House of Fraser (Stores) Ltd, 3 December 2008).
And even when marketers claim comparisons are intended to be with their own products, a comparison with some theoretical or ideal standard or a mere puff, the ASA might take the view that the average consumer would read the claim as a comparison which, by implication, identifies a competitor or their goods or services.
Although it makes life easier, marketers do not necessarily have to compare like with like. Those who feature a competitor's product or service should ensure that it is the most comparable to their own or state very clearly that the competitor offers a more similar product. The ASA has upheld a number of complaints about marketers who have not compared products of similar quality (B&Q plc, 10 September 2008) similar attributes (Specsavers Hearcare Group Ltd, 16 January 2008), or similar qualifying criteria. In the latter case, one advertiser did not make clear that the product, on which it based a comparison, was not available to all (Alliance & Leicester plc, 6 August 2008). And, unless they state clearly otherwise, marketers should ensure that they do not compare promotional prices with non-promotional prices (ASDA Stores Ltd, 21 May 2008, and Specsavers Hearcare Group Ltd, 16 January 2008). If relevant, marketers should include closing dates for promotional prices (Specsavers Hearcare Group Ltd, 16 January 2008).
In short, if the most comparable competitor’s product differs significantly from the marketer’s product and that difference is likely to influence a consumer’s understanding of the advertised comparison, marketers should acknowledge the difference in the marketing communication. They should ensure that the basis of the comparison is clear to consumers.
Some comparisons are intended to affect behaviour by, for example, switching brands or, in one case, to eat wholemeal bread instead of cereal. In adjudicating, the ASA considered that the advertiser had used an unacceptably small portion size of cereal as the basis of the comparison and was therefore misleading (Premier Goods Group Ltd, 28 January 2009). And in 2007, the ASA had considered an ad that compared the environmental impact of air travel on the Airbus A380 with that of an “average family car”. The complainant believed the comparison was unfair and misleading but the ASA concluded that, although the A380 and a family car did not have the same use, the comparison was acceptable and merely used the average family car as a point of reference (Airbus S.A.S, 31 October 2007).
Of course, marketers must ensure that they hold up-to-date substantiation to support all claims that consumers are likely to regard as objective and that are capable of objective substantiation (Rule 3.7). The ASA will uphold complaints if objective comparative claims, including superiority claims, are not supported by comprehensive documentary evidence. In 2008 the ASA upheld complaints about the claims “removes more plaque than any other premium power toothbrush” and “sets a new standard for effective plaque removal”. Despite having seemingly robust data, the ASA considered the evidence did not conclusively show a meaningful benefit to the consumer (Philips Electronics UK Ltd, 26 March 2008).
Marketers of aggressive comparisons also risk breaching Rule 20. The Code instructs marketers who use comparisons with identifiable competitors or their products not to discredit or denigrate. See British Sky Broadcasting, 28 May 2008 and ‘Denigration & Unfair Advantage’.
In 2007, the ASA decided that retrospective savings claims are a suitable basis for comparative claims. EDF ran a series of ads claiming, “EDF ENERGY customers have already SAVED up to £110* on Dual Fuel. Dual Fuel saving comparing EDF Energy to British Gas …” British Gas complained that the ads were misleading, but the ASA said it was clear that the £110 saving was a reference to the amount customers saved in 2006 and readers were unlikely to infer that the same level of savings would necessarily continue in the future. (EDF Energy plc, 8 August 2007).
Marketers that do not identify the product or good with which they compare are covered by Rules 3.36 and 3.38. These state that comparisons, for example those with their own products or with unidentified products, must not mislead, or be likely to mislead, the consumer. The elements of the comparison must not be selected to give the marketer an unrepresentative advantage. Marketers should not omit from the marketing communication information that consumers are likely to need to form an opinion of the relative merits of the products being compared. Comparisons must not create confusion between the marketer and its competitors or between the marketer’s product, trade mark, trade name or other distinguishing mark and that of a competitor.
CAP has written a Help Note on Retailers’ Price Comparisons and other Help Notes in particular sectors cover comparisons. See Price Claims in Telecommunications Marketing and Price Claims in Utilities Marketing. Marketers should also refer to the Help Note on Lowest Price Claims and Price Promises.
See ‘Comparisons: Verifiability’; ‘Comparisons: Basket of Goods’; 'Denigration & Unfair Advantage’ and ‘Utilities’.
Last modified : 05 August 2010