Comparative Advertising – Don’t get caught out

23 February, 2017

As illustrated by the recent EU case[1] against Carrefour hypermarkets, even the big industry players can get comparative advertising wrong.

Comparative advertising is a common feature of brand and product promotion in the food industry, where price point is usually a, if not the, key consideration for consumers. The big supermarket chains are often keen to give lowest price guarantees, in the way that Carrefour was doing here, but smaller industry players may also wish to promote their products in a similar way.   However, this is a complex area of law with a number of legislative controls at UK and EU level and a substantial body of case law, and businesses which get it wrong can suffer reputational as well as financial loss.

If you choose to run an advertising campaign which compares your prices, or other features of your products or services, with those of your competitors you need to make sure the adverts are objective comparisons and not misleading[2] and that they bring to the attention of consumers the necessary information to allow consumers to make a commercial decision in full knowledge of the facts[3].   The problem the Court identified with Carrefour’s adverts, following a complaint by Intermarche, was that the comparison did not relate to shops of the same size or format. The adverts compared prices in Intermarche’s supermarkets against those in Carrefour’s hypermarkets and, crucially, did not clearly bring this clearly to the attention of consumers.

In order not to fall foul of the law in this area[4], food retailers will need to ensure their comparative adverts are clear on:

  • their identity as the advertiser and which products or services are theirs;
  • which competitors they are identifying and which of their competitor’s products and services they are comparing;
  • the basis of the comparison they are making (e.g. price, quality, size);
  • the similarity of their offerings (they must compare “like with like”);
  • the dates the comparisons are made and any other relevant factors; and
  • the documentary evidence they have to back up their claims.

Remember also that if you are using a competitors brand name (trade mark) you will need to exercise care not to confuse your products and services with those of your competitors, or imply a connection between your brand and your competitors or breach their copyright by reproducing their logo or artwork.

If you have any questions about advertising, trademarks or copyright please contact Elliot Fry.  If you have been the subject of comparative advertising and would like to know your rights, please contact Tom Bourne.

[1] Carrefour Hypermarches SAS v ITM Alimentair International SASU, Case C-562/15

[2] Directive 2006/114 on Misleading and Comparative Advertising – brought into English Law by the Business Protection from Misleading Marketing Regulations 2008 (SI 2008/1276)

[3] Directive 2006/29 on Unfair Commercial Practices – implemented in the UK as the Consumer Protection from Unfair Trading Regulations 2008

[4] Including the UK Code of non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) and the UK Code of Broadcast Advertising (BCAP), as enforced by the Advertising Standards Authority (ASA).  Trading Standards Services (TSS), the Competition and Markets Authority (the CMA) and consumer protection organisations (like Which?) can all seek orders preventing the publication of comparative advertising.