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.
Different rules apply to comparisons made with identifiable competitors and unidentifiable competitors. When making a comparison with an identifiable competitor, comparisons must not mislead the consumer about the product or the competing product (3.33), must be about products which meet the same need or are intended for the same purpose (3.34), and must be verifiable (3.35).
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. Marketers do not need to explicitly identify the competitor or product that they are comparing with to be subject to the rules on comparisons with 'identifiable' competitors, and if it is possible to name at least one competitor, then the claim will be considered a comparison with an identifiable competitor or competitors.
“Leading” claims are, by their nature, likely to be seen as a comparison with all competitors, which will mean they are likely to be identifiable, as are claims like “UK’s most effective…” (Medichem International (Manufacturing) Ltd, 13 April 2016) and “UK’s cheapest” (Telecommunications Managements Ltd t/a 1pMobile, 28 June 2017).
If a market is small, highly specialised or dominated by a few major players, the intended competitor(s) are usually likely to be very clear despite not being named. 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.
Code rule 3.34 states that comparisons with identifiable competitors should be between products meeting the same need or intended for the same purpose. A straightforward example is a comparison between two differently branded products which meet the same purpose, such as vacuum cleaners. However, Code rule 3.37 specifies one exception, this is that products registered as having a “designation of origin” can be compared only with other products with the same designation.
An ad for a car recovery service which compared their own service with that provided by a competitor was not considered misleading because, whilst the two services compared had different specifics, both products offered vehicle recovery after a breakdown and were therefore intended for the same needs or purpose (Green Flag Ltd 09 May 2018). Similarly, a comparison between a part-exchange deal where customers could exchange cars, and a service which provided cash in exchange for customers’ cars, was not considered misleading by the ASA, who considered that there was a sufficient degree of interchangeability between the two services as both offered to take the consumers’ vehicles off their hands and recoup the value of their vehicle (General Motors UK t/a Vauxhall, 07 February 2018).
Comparisons must be based on objective criteria and presented in a way that is unlikely to mislead. Code rule 3.35 states that such comparisons must objectively compare one or more material, relevant, verifiable and representative feature of those products which may include price.
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, such as the provenance of ethics of the product, had not been taken into account and that some of the products compared were not comparable due to these differences. In this case, the ASA considered that despite potential differences in areas such as animal welfare or provenance of the ingredients, the ad had objectively compared the price for products which met the same need, and (Tesco Stores Ltd, 31 July 2013).
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 2018 an ad for a waste management service which stated "UK's largest operator" was considered acceptable because the advertiser had evidence to demonstrate that this was the case. Whilst some of the evidence was based on estimates, in the absence of any evidence that a competitor with a larger turnover might conceivably have been omitted from the report, or that the actual turnover of any of the businesses for which estimates had been made might be so much larger than the estimated figures that it might surpass AnyJunk, the ASA concluded that AnyJunk’s claim to be the “UK’s largest operator” had been substantiated and was unlikely to mislead (Anyjunk Ltd, 28 November 2018).
In contrast, an ad for BT Wi-Fi which stated “UK's most powerful Wi-Fi vs. major broadband providers" was upheld because BT did not test for all significant forms of non-Wi-Fi interference and because they did not provide recordings of the levels of interference when each router was tested (British Telecommunications plc t/a BT, 27 February 2019).
Any ads which include a comparison with an identifiable competitor must 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.