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.
• Make fair comparisons against identifiable competitors
• Ensure price comparisons are clear
• Take care when comparing different types of products
• Hold evidence
• Don't mislead when comparing with unidentifiable competitors
Make fair comparisons against identifiable competitors
Comparisons with identifiable competitors should be between products meeting the same need or intended for the same purpose (the exception being products registered as having a “designation of origin” which can be compared only with other products with the same designation). They are allowed as long as they are based on objective criteria and are presented in a way that is unlikely to mislead. The Code states that such comparisons must objectively compare one or more material, relevant, verifiable and representative feature of those products which may include price. Readers should have access to the information on which the comparison is made and the ad should signpost where they can get that information (ASDA Stores Ltd, 14 January 2009). See Comparisons: Verifiability.
Marketers do not need to identify explicitly the competitor or product that they are comparing with to be subject to the rules on comparisons with 'identifiable' competitors. Whether a competitor or its products are identifiable will obviously depend on the ad, claims, audience, context and nature of the market in which the advertiser operates. “Leading” claims are, by their nature, likely to be seen as a comparison with all competitors as are claims like “UK’s most effective…” (Medichem International (Manufacturing) Ltd, 13 April 2016; Liverpool-Kop.com, 27 May 2015). If a market is small, highly specialised or dominated by a few major players, the intended competitor(s) are likely to be very clear despite not being named, but marketers should also bear in mind that the ASA's interpretation of 'identifiable' has been necessarily broad to stay in line with the legislation that underpins the Code rules.
Marketers of aggressive comparisons also risk breaching Rule 3.42. The Code instructs marketers who use comparisons with identifiable competitors or their products not to discredit or denigrate. In 2011 the ASA upheld a complaint about an estate agent’s ad that denigrated a competitor. Although the advertiser objected that the competitor was not named and therefore unidentifiable, the ASA noted that it would not be difficult for interested readers to deduce the complainant's identity (Imagine Estate Agents, 12 January 2011). See Denigration.
Ensure price comparisons are clear
The basis of price comparisons must always be made clear. Ads for non promotional prices may make price comparions against competitors promotional prices, however if this type of comparison is made the ad must make it clear that the comparison is made against a promotional price. (ASDA Stores Ltd, 21 May 2008). If relevant, marketers should include closing dates for promotional prices (Specsavers Hearcare Group Ltd, 16 January 2008).
Take care when comparing different types of products
If the 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. In 2013 a supermarket objected to price comparisons made by a competitor; they believed important product attributes had not been taken into account, that some of the products compared were not comparable and that the basis of the price match policy had not been made clear. The ASA considered that despite potential differences in areas such as animal welfare or provenance of the ingredients the advertiser had objectively compared price for products which met the same need (Tesco Stores Ltd, 31 July 2013).
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. 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).
Don't mislead when comparing with unidentifiable competitors
The rules relating to unidentifiable competitors have fewer requirements. Essentially comparisons must not mislead the consumer and the elements of the comparison must not be selected to give the marketer an unrepresentative advantage. For example, in 2014 the ASA ruled that a comparison between the prices of an online furniture retailer’s products and similar high street products was misleading, because comparator products were selected on the basis that they served the same function and were similar in terms of aesthetic, but might vary in terms of the quality of finish or the quality of the materials used (Made.com Design Ltd, 16 April 2014). Marketers should not omit from the marketing communication information that consumers are likely to need to form an opinion on the relative merits of the products being compared.
See Retailers’ price comparisons, Price claims in telecommunications marketing, Price claims in utilities marketing, Lowest price claims and price promises, Comparisons: Basket of goods and Utilities advertising.
Updated 15 December 2016