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 and CAP recognise that comparative advertisements help give customers valuable information as well as encourage competition between advertisers. But, as with all ads, it is important that they are clear and easy for consumers to understand and they comply with the relevant legislation.
The CAP Code requires that comparisons with identifiable competitor products “must objectively compare one or more material, relevant, verifiable and representative feature of those products” (rule 3.35).
What kinds of comparisons require verification information?
What information is needed to make something verifiable?
Where should I provide the information?
What about surveys and test results?
What if my comparison is based on confidential information?
The Code does not specify what constitutes ‘verifiable’, but in 2006 the European Court of Justice ruled in the case of Lidl v Colruyt that for a general price comparison to be 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 target audience.
While CAP does not give legal advice, the ASA has taken this position into account when investigating complaints on this issue.
Any ads which include a comparison with an identifiable competitor must be verifiable. 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, and the ASA’s interpretation of ‘identifiable’ competitors is broad. If a consumer can identify at least one competitor, whether or not they are stated in the ad, this will mean that the comparative claims must be verifiable.
Some comparisons are easily verifiable; a price comparison between two identical products sold by two different retailers, for example, could be checked by looking on their websites. But some comparisons, such as those that involve many products, could be more difficult. An ad which made a savings claim on a basket of goods sold in supermarkets was upheld because the ad compared branded and unbranded products and it was not clear that the saving stated in the ad could only be made against the supermarkets own branded products (Aldi Stores Ltd 29 June 2016).
“Leading” claims are, by their nature, likely to be seen as a comparison with all competitors, (Medichem International (Manufacturing) Ltd, 13 April 2016), and 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.
This does not only apply to price comparisons and will also apply to more general comparisons. A complaint about and ad for a kitchen supplier which stated “The UK’s number 1 Kitchen Retails Specialist” was upheld because, whilst the advertisers could substantiate this claim, the ad did not include any information which would allow customers to verify the claim (Wren Kitchens, 26 July 2017). One advertiser questioned whether their ads were subject to the verifiability requirement, because they did not contain a price comparison but instead referred to their price match scheme. The ASA ruled that because the competitors were identifiable the verifiability requirement applied, and the advertiser should signpost consumers to their methodology (Wm Morrison Supermarkets plc, 26 August 2015).
Two ads for Fairy Dishwasher Platinum Plus tablets which advertised their performance in tests carried out by the consumer organisation Which? were investigated by the ASA in 2020. The complainant challenged whether the claims were comparative claims made about the product compared to all other dishwasher tablets on the market, and whether the claims were verifiable. The claims “Which? Best Buy Dishwasher Tablets February 2019” and “Which? Best Buy Dishwasher Tablets February 2019”, both of which were presented using Which?’s ‘Best Buy’ award logo and branding, were not considered comparative claims by the ASA, who considered that consumers would understand that the product had been independently tested by Which?, and that they had met the criteria Which? set for its Best Buy dishwasher tablet award on the dates stated, rather than being a comparison with other products. However, the claim “best dishwasher tablet on test” which was used in one of the ads was considered a comparative claim. The ASA considered that consumers would understand that this was a comparison with the other products tested only, rather than being a comparison with all other products on the market, however, because this was a comparative claim it should have been made verifiable in the ad, and the complaint was upheld on that point (Procter & Gamble UK, 27 May 2020).
In terms of the information required to make a comparison verifiable, this will depend entirely on the specific comparison and the evidence used to support it. Generally speaking, marketers should include as much information as possible to ensure that consumers are able to check it for themselves and include a signpost in the ad to information on the basis of the comparison. If verifying the comparison requires specialist knowledge, consumers should be able to get a knowledgeable and independent person or organisation to verify the comparison for them.
An ad which stated an average customer saving when selling property, based on the fee charged on the advertiser’s average sale price versus the amount if the UK average commission fee of 1.5% had been applied, was found to breach the Code because it didn’t state or provide a signpost to information such as what the average sale price was, how that average (and their associated fee) had been calculated and details of the source for the average estate agent fee (New Broom Ltd, 14 September 2016).
Where a comparison is made with “the leading brand”, although in many cases it is likely that consumers will be able to readily identify the competitor, ads featuring this type of comparison will still need to state or direct consumers to the full information about the comparison, including which products were selected and how the comparison was carried out (Procter & Gamble (Health & Beauty Care) Ltd, 2 December 2015).
Simply citing a third-party website, such as MySupermarket.com in the case of price comparisons, without telling consumers which specific products were used in the comparison and the date the comparison was made, is unlikely to be acceptable.
An ad for an iron supplement which stated “9/10 find Active Iron better tolerated" was ruled misleading because, the ad did not include or signpost information which the ASA considered that consumers would need in order to verify the claim, including details of the specific supplements Active Iron was being compared against, or the fact that the claim was based on the results of a consumer survey, as opposed to a clinical trial (Solvotrin Therapeutics Ltd, 13 June 2018).
Marketers should be explicit about how readers can verify a comparison; merely including a website or postal address, without stating that it is where consumers can verify the comparison, is unlikely to be sufficient. Perhaps the most straightforward way to ensure a comparison is verifiable is to direct consumers to a website that contains information on the basis of the comparison, such as the products, prices and the methodology, and make it clear that this is how consumers can verify the claims. Marketers could, for example, include “comparison can be verified on www…” or “visit www… to verify the comparison” in small print.
A comparison which included claims about "Market leading signal strength”, “Fastest speeds in the UK” and “Reaches parts of your home that the best routers from the other big providers can't" was ruled misleading because the means to verify the comparison was considered not to have been sufficiently or clearly signposted. Although a link to a copy of the test report was provided, it could only be accessed by clicking and expanding a heading found under “Small Print” and clicking through to a page with another link to open the test report (TalkTalk Telecom Ltd, 1 June 2016).
It is also likely to be acceptable to provide verification information upon request, by directing consumers to contact a postal or email address to obtain verification information (Wm Morrison Supermarkets plc, 26 August 2015).
Comparisons based on survey results, particularly where the details are not published or accessible in the public domain, are likely to need to signpost consumers to information such as the sample size, the methodology, the group of respondents represented in the sample, which competing providers were included and the factors that respondents were required to consider when answering the question(s) on which the claim was based (HPI Ltd, 15 June 2016).
Similarly, efficacy comparisons are likely to need to detail the methodology of the tests carried out, include a breakdown of individual results and make clear which products were tested (Medichem International (Manufacturing) Ltd, 13 April 2016).
The claim “best dishwasher tablet on test”, which referred to a test carried out by the consumer organisation Which? was considered a comparison with the other products tested, and should have been made verifiable in the ad (Procter & Gamble UK, 27 May 2020).
Comparisons based on commercially sensitive or confidential data should be made with care since in the case of some comparisons the ASA may decide that such information should be made available to consumers and competitors when requested. A complaint about an ad comparing supplements was upheld because the survey results themselves were not in the public domain and therefore could not be accessed by consumers to allow them to obtain that information themselves (Solvotrin Therapeutics Ltd, 13 June 2018).
See also, 'Comparisons: General'.