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.
Although the Code permits comparative advertising, marketing communications must not discredit or denigrate another product, marketer, trade mark, trade name or other distinguishing mark or take unfair advantage of the reputation of a competitor’s trade mark, trade name or other distinguishing mark or of the designation of origin of a competing product (Rules 3.42 and 3.43).
Marketers that make comparisons should be mindful of the relevant rules, especially Rule 3.35, which states that comparisons must objectively compare one or more material, relevant, verifiable and representative feature of those products. If comparisons stray into subjectivity, marketers should take care not to unintentionally denigrate their competitor or the competitor product. And marketers should be careful even when they are not naming their competitor: in markets where competitors are few, it might be clear to readers who or what the comparison is with, irrespective of whether they are explicitly identified.
In 2008, the ASA upheld a complaint about an ad that stated “Despite advertising price cuts, BT are giving 11 million customers a price rise today … At Sky, we believe in real value and fair and honest pricing – that’s why Sky customers can get call packages with Sky Talk that are a lot cheaper than either BT or Virgin Media, with no funny business …”. BT objected that the ad was denigratory by implying BT had intentionally misled customers by surreptiously increasing its prices. Although the claim about 11 million people experiencing price increases was right, the ASA was concerned about the mention of BT’s price increase alongside the claim about Sky believing in “fair and honest pricing” and the reference to “funny business”. The ASA concluded that the ad denigrated BT because those claims went beyond a robust and objective price comparison and implicitly attacked BT’s business practices (British Sky Broadcasting Ltd t/a Sky, 28 May 2008).
That adjudication is a good example of where to draw the line when knocking your competitors. Nearly all comparative advertising has the potential to discredit or denigrate and a degree of knocking copy is allowed as long as it does not involve gratuitously putting the boot into the competitor. Marketers may positively promote products, point to objective points of difference or publicise a verifiable competitive advantage but if they rubbish their competitors’ goods, suggest unfair, dishonest or duplicitous practices or imply some other sleight of hand, the ASA is likely to consider their marcoms denigratory.
Also, that adjudication enshrines the principle that whether an ad is considered discrediting or denigratory does not necessarily depend on whether a claim is true or fair. Sky’s statement that BT raised its prices for 11 million customers was true and the advertiser had a legitimate right to bring that to the attention of readers. But, because the rest of the ad discredited and denigrated BT’s professional conduct and commercial practices, the ASA considered the ad breached the Code. Marketers may make factually accurate statements but might nevertheless fall foul of the Code if they do so in a denigratory way.
Although the Code allows them to state an opinion about the qualities or desirability of their products, marketers should be mindful that expressions of opinion that allude to a competitor’s sharp practices or the like are likely to be unacceptable: those opinions are unlikely to satisfy Rule 3.35, which requires comparisons to compare objectively one or more material, relevant or verifiable feature.
Light-hearted, humorous references to competitor products that are unlikely to be seen as denigratory or exploitative have in the past been acceptable. But, if the competitor is identifiable, marketers should not use offensive language or images to discredit it (Equi Life 21 March 2007).
Shortly after ruling on the Equi Life complaint, the ASA upheld complaints about a mailing that showed a young woman with her breasts partly exposed and the claim “You’d employ her to pull a few pints … and a few new customers. Wouldn’t you? But not to do your accounts!” The ASA considered that the mailing implied female bar staff and licensees were not capable of doing accounts. Because of that, the ASA concluded that the ad was likely to denigrate female licensees and bar staff. (Licensed Trade Accountants, 2 May 2007). So, it’s not just competitors that marketers risk denigrating but also those working in other industries (People for the Ethical Treatment of Animals, 22 March 2006, and Publishing House t/a Vernon Coleman, 30 May 2007).
See 'Comparisons' and ‘Exploitation of Goodwill’
Last modified : 14 December 2011