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 encouraging competition between advertisers. But, as with all ads, it is important that they are clear and easy to understand for consumers and comply with all 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).
The Code does not specify what is meant by 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 how the information used to make that comparison can be checked by the target audience of the ad. The ECJ ruled that “a feature mentioned in comparative advertising satisfies the requirement of verifiability. … in cases where the details of the comparison which forms the basis for the mention of that feature are not set out in the advertising, only if the advertiser indicates, in particular for the attention of the persons to whom the advertisement is addressed, where and how they may readily examine those details with a view to verifying or, if they do not possess the skill required for that purpose, to having verified, the details and the feature in question as to their accuracy”.
In short, CAP believes it means the advertiser must give readers enough information about the comparison to understand it and include a signpost in the ad to that information. If the checking requires special knowledge most consumers are unlikely to have, readers should be able to get a knowledgeable and independent person or organisation to verify the comparison.
Obviously, some comparisons are easy for consumers to verify. For example a comparison between two identical products sold by two different retailers could be checked by looking on their websites. But some comparisons, for example those that involved many products could be more difficult for consumers to verify. An ASA adjudication (ASDA Stores Ltd, 14 January 2008) considered an ad that contained a comparison of that type. The ASA concluded that, although the comparison was unlikely to mislead, the ad did not comply with the Code, because it gave no way for readers to verify the advertised savings.
CAP recommends that, when making comparative ads, marketers should ensure that consumers and competitors are told how they can verify the products and prices (or other verifiable feature) used to make the comparison. One way to do that is to direct readers to a website that contains a list of all the features (such as the products and prices) of the comparison, for example, by including the claim “prices can be verified on www.thiswebsite.co.uk/comparisons/date2009”. Alternatively, marketers could invite readers to write to a postal address stated in the ad.
CAP believes marketers should be explicit about how readers can verify the comparison; for example, merely including a website or postal address without stating that readers can verify the comparison might be insufficient. And it might not be sufficient for marketers to cite a third- party website, such as MySupermarket.com in the case of grocery retailer price comparisons, without telling readers the products used in the comparison.
It is also clear from the ECJ judgment that the requirement for verifiability should not be confined to price comparisons and the ASA has ruled that it would also apply to general comparisons. An ASA adjudication (Tensar International Ltd, 20 May 2009) considered a brochure that contained a general comparison and concluded that because there was no signpost in the brochure to the relevant information for enabling verifiability, the marketing communication did not comply with the Code.
Marketers should be aware that in some cases competitors do not need to be explicitly named in an ad for them to be identifiable. In the Tensar ad the competitors were not named but because of the small number of competitors in that sector and the specialist nature of the brochure, the ASA concluded that they were identified by implication and the ad needed to be verifiable. Whether a competitor or its products are identifiable will obviously depend on the ad, the claims, the audience, the context and the nature of the market in which the advertiser operates. Where the market is not highly fragmented, a very rough rule of thumb might be that fewer than about six or seven competitors might be identifiable. 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.
Last modified : 02 March 2012