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, and upheld against, many comparisons made by telecoms companies claiming superiority over competitors. Marketers intending to make any comparisons should consider how consumers are likely to interpret the claim in the context of the ad.
Claims that the average consumer is likely to understand as an obvious exaggeration (puffery) or claims which consumers are unlikely to take literally are allowed provided they do not materially mislead (3.2).
If consumers are likely to understand a claim as an objective claim, 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 must also comply with rules 3.33 – 3.40.
Before making any comparative claims in advertising, marketers should consider the following:
- How will consumers interpret the claim?
- Is it puffery?
- Is it an objective claim?
- Is it a comparison with identifiable competitors?
- If it is objective, make sure you can substantiate it.
- In addition, when making a comparison with identifiable competitors comply with rules 3.33 – 3.37.
The sections below give detailed guidance on each of these stages. This advice is designed to be read alongside our general advice on Comparisons: general.
Is it subjective?
Code rule 3.2 states that obvious exaggerations ("puffery") and claims that the average consumer is unlikely to take literally are allowed provided they do not materially mislead.
Marketers are not expected to hold documentary evidence to prove claims unless consumers will see them as objective, and they are capable of objective substantiation. The ASA will assess a consumer’s likely interpretation of a claim, rather than the marketer’s intention. Marketers intending to make an obvious exaggeration (puffery) should therefore take particular care to ensure that it will not be understood as an objective claim.
The ASA considered the claim “the perfect network” to be an objective one in the context of the ad, despite the advertiser’s argument that it would be seen as puffery. The ASA considered that, in the context of the claim being used in reference to the “network”, without qualification, consumers would understand it to be an objective claim that Sky Mobile performed to a very high standard across a range of factors related to their network. Additionally, because the ads claimed that Sky Mobile was “the perfect network”, consumers would understand the claim to mean that Sky Mobile was the only network which could be described as “perfect” (Sky UK Ltd, 8 June 2022).
Is it objective?
Claims that consumers are likely to take literally, and which are not obvious exaggerations (puffery) are likely to be objective claims. If a comparative claim is likely to be understood as referring to an objectively measurable feature of the service advertised, the claim will be considered an objective one If this is this case, the advice in the section on substantiation, below, will apply.
In 2018 the ASA considered that consumers would interpret the claim “The UK’s best value mobile” to relate to the features integral to the nature of a mobile phone service: minutes, texts and data, and because the advertiser did not offer more data, minutes and texts than all other UK mobile tariffs relative to the costs of the tariffs, found the claim misleading (Utility Warehouse Ltd, 08 August 2018). See also “best price” (The Carphone Warehouse Ltd, 03 August 2016).
Is it a comparison with identifiable competitors?
Marketing communications do not need to explicitly identify 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, whether or not it is identified explicitly in the ad, rules 3.33 – 3.37 will apply. See the section on ‘comparisons with identifiable competitors’ below, and Comparisons: identifiable competitors.
If it is not possible to identify a competitor rules 3.33 – 3.37 will not apply. Marketers must still ensure that these types of comparisons do not mislead (3.38), and objective claims must be supported by evidence (3.7). See Comparisons: general.
The CAP Code requires advertisers to hold documentary evidence to substantiate claims that consumers are likely to understand as objective and that are capable of objective substantiation.
The nature of the evidence required to substantiate any comparative claim will vary depending on how it will be understood in the context of the ad. Comparative claims may be superlative claims, claiming that the product/service is better than all alternatives, or top parity claims, claiming that it is just as good as alternatives.
The top parity claim “you won’t get a better Wi-Fi signal” was considered misleading because the advertiser could not demonstrate that that their Wi-Fi hub performed as well as the other major broadband providers (TalkTalk, 10 July 2019).
The ASA also investigated the superiority claim “Bristol. Don’t settle for Virgin. Get Ultrafast Full Fibre with more reliable speeds than Virgin M200 and M350”. Although the advertiser could demonstrate that the service had more reliable speeds nationally, the data could not be extrapolated to demonstrate that this was the case on a local level and the claim was considered misleading (British Telecommunications plc, 05 May 2021).
Self-reported consumer 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). For further advice on comparative claims made based on surveys and awards see Comparisons based on awards and consumer surveys.
Comparisons with identifiable competitors “must not mislead, or be likely to mislead, the consumer about either the advertised product, or the competing product” (3.33), “must compare products meeting the same need or intended for the same purpose” (3.34), and “must objectively compare one or more material, relevant, verifiable and representative feature of those products” (3.35). See Comparisons: Identifiable competitors.
The ASA has upheld complaints about comparisons with identifiable competitors, where the comparison was based on consumer perception surveys, under rule 3.35. The claim “on the network voted Britain’s Best for Coverage” breached this rule because it was not based on a robustly conducted comparison of a range of appropriate, relevant and objective performance measures (Telefonica UK Ltd, 22 September 2021).
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. See Virgin Media Ltd, 4 May 2022. For detailed advice on this requirement, see Comparisons: Verifiability.
The information must be readily accessible. Providing incomplete information, or information behind a paywall, will be insufficient. See Hutchison 3G UK Ltd t/a 3, 24 February 2021.
The information provided must be sufficient for consumers to be able to verify the comparison. The claim “The UK’s Best Network” needed to be backed up by objective evidence which showed Vodafone’s network had been found to perform better in technical aspects such as coverage and reliability than the rest of the market. Although the ad did include information about the customer survey used to support the claim it did not include, or direct consumers to, objective evidence to support the claim, and was therefore not verifiable (Vodafone Ltd, 28 July 2021).
For further advice see ‘Comparisons based on awards and consumer surveys’.