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.
Our next event, Advice:am2pm, will include a session on Misleading Advertising, where you can learn more about comparisons.
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 (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.
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.
Any ads which include a comparison with an identifiable competitor must also be verifiable. In order to make a comparison verifiable, ads must include or direct a consumer to sufficient information to allow them to understand the comparison, and be able to check the claim was accurate, or ask someone suitably qualified to do so. A complaint about an ad which stated “The world's largest management company for Airbnb and more" was upheld by the ASA because the ad did not provide any information to ensure consumers were able to check the comparative claim, nor did it include a signpost to information on the basis of that comparison (Airsorted Ltd, 08 August 2018). For more information, see Comparisons: verifiability.
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.
See also: Comparisons: identifiable comparisons
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.
The basis of price comparisons must always be made clear. Ads for non-promotional prices may make price comparisons 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. The ASA has criticised many marketers for not making clear that they have used promotional prices in their comparison (Boots UK Ltd, 22 October 2008). The ASA considered that one marketer’s footnote “Includes Tesco products on promotion”, did not negate the misleading impression given by the headline (Tesco Stores Ltd, 20 August 2008).
Ads should make it clear if the comparison is made with specific competitors, and should not make any claims which could be interpreted as an absolute comparison against the whole market, e.g., “we have the cheapest prices”. An ad for Tesco which compared the price of a Christmas shop at 5 supermarkets was considered misleading because, whilst the qualifying text in the ad stated which supermarkets were included in the comparison, the headline claim stated “no one is cheaper for your big Christmas shop”, which was likely to be considered an absolute comparison with the entire market (Tesco Stores Ltd, 21 May 2014).
Price comparisons must not mislead by falsely claiming a price advantage, and comparisons with RRP’s are likely to mislead is the RRP differs significantly from the price at which the product or service is generally sold.