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.
The ASA has investigated multiple comparisons which were based on customer surveys, votes, or third-party awards. Many of these claims have been found to breach the CAP Code.
Marketers making claims on the basis of awards or surveys should consider how consumers are likely to interpret the claim in the context of the ad. If consumers are likely to understand the claim as objective, the advertiser must hold evidence to substantiate the claim as consumers are likely to understand it (rule 3.7).
All claims which draw a comparison with identifiable competitors or competing products must comply with rules 3.33 – 3.40.
For general advice on comparative claims, see Comparisons: general.
Substantiation
If the claim is likely to be understood as an objective one, marketers should hold evidence to substantiate it. Self-reported consumer data or other subjective data will not be sufficient to support a claim that would otherwise require objective substantiation. Marketers should not rely on consumer perception data, or on the fact that they have recieved awards, to support claims for which they do not hold objective substantiation.
The ASA considered that consumers would understand the claim “Best network for data” to be based on a comparison of a range of mobile-data-related objective performance measures, for example coverage and speed, from a range of mobile data networks. In reality, the claim was based on Three receiving an award, which was decided by a panel of judges and a consumer survey. Because the advertiser did not have objective data to substantiate the claim, it was considered misleading (Hutchison 3G UK Ltd t/a 3, 24 February 2021).
The claim “BEST DISHWASHER TABLET ON TEST”, which appeared underneath the text ““Which? Best Buy Dishwasher Tablets February 2019” and an image of a trophy, was considered acceptable in an ad for fairy dishwasher tablets. The ASA considered that consumers would interpret this to mean that Which? had tested the performance of a range of dishwasher tablets, including the best-selling products in the UK, using its own testing criteria, and that the advertised product had received the highest score. Because this was the case, the ASA concluded that the claim “BEST DISHWASHER TABLET ON TEST”, as consumers would understand it, had been substantiated and was not misleading (Procter & Gamble UK, 27 May 2020).
Even if the criterion for a claim is subjective (for example, taste or satisfaction), the claim will still be considered objective if it communicates the outcome of a customer survey (for example, “"Best Pizzeria Taste at home. 9 out of 10 agree") , and marketers must have evidence to demonstrate that the results of the survey support the claim made and are accurately described (Dr Oetker (UK) Ltd, 10 August 2018).
Comparisons with identifiable competitors
Marketing communications do not need to identify explicitly the competitor or product being compared to be subject to the rules on comparisons with 'identifiable' competitors. If a consumer can identify at least one competitor or competing product that is being compared, whether or not it is identified explicitly in the ad, rules 3.33 – 3.37 will apply. See Comparisons: Identifiable competitors.
Code rule 3.35 requires that comparisons must “objectively compare one or more material, relevant, verifiable, and representative feature of those products, which may include price”.
To make a claim verifiable, the advertiser should set out the relevant information in the ad, or signpost how the information used to make that comparison can be checked by the audience. For detailed advice on this requirement, see Comparisons: Verifiability.
The ASA upheld complaints about the claim “The UK’s Best Network”. Because the ad did not include, or direct consumers to, information which showed that the advertiser’s network had been found to perform better in technical aspects than the rest of the market, the claim was not verifiable (Vodafone Ltd, 28 July 2021).
The ASA upheld complaints about the claim “on the network voted Britain’s Best for Coverage” because the comparison was based on customers’ subjective perceptions of their own networks, and the advertiser did not hold evidence that a range of networks had been rated based on a robustly conducted comparison of a range of appropriate, relevant and objective performance measures, which was a breach of rule 3.35 (Telefonica UK Ltd, 22 September 2021).
For more information on claims based on consumer surveys, see Substantiation: Consumer surveys and sample claims.