CLOSE-UP PERSPECTIVE: New ’honesty’ laws could render many campaigns illegal

Nothing turns media lawyers into doom merchants more quickly than a fresh piece of legislation, and the upcoming new rules on comparative advertising will be no exception.

Nothing turns media lawyers into doom merchants more quickly than a

fresh piece of legislation, and the upcoming new rules on comparative

advertising will be no exception.



Like the Ancient Mariner tugging at the wedding guest’s sleeve, the

briefs take a perverse pleasure in reminding agencies and advertisers of

laws riddled with inconsistencies and traps for the unwary.



The law firm Osborne Clarke has even arranged a seminar on 6 April at

which it will warn that the legislation with the jaw-ache-inducing title

of The Control of Misleading Advertising (Comparative Advertisements)

Regulations 2000 will not be the non-event that the industry thinks.



Under the rules - part of an European Union-wide drive to standardise

big differences across the Continent -comparative advertising will be

allowed only if it is not misleading, compares like with like, does not

create confusion, discredit or take unfair advantage of a rival’s

trademark or present goods as imitations of those bearing a protected

trade name.



The effect of this will be to render a raft of product claims illegal

from the end of next month, the law firm claims. And, in order to make

the scenario truly nightmarish, it tells advertisers that they must not

only take extra care to ensure their ads are legal, but avoid the

attentions of newly empowered consumer groups which will be able to

apply to the courts if they believe an advertiser is flouting the

law.



How much of this needs to be taken seriously and how much is crying wolf

remains to be seen.



For one thing, bodies such as the Consumers’ Association, now much less

confrontational on advertising issues than they used to be, are unlikely

to spend large amounts proving their virility by dragging recalcitrant

advertisers through the courts when existing, cheaper alternatives

remain.



For another, the Office of Fair Trading has had the legal powers to

tackle advertising’s serial offenders since 1988 but has evoked them

only a handful of times.



But that’s not to underestimate the significance of what is about to

happen. Creatives cannot work in isolation from pragmatic considerations

and the new laws are indicative of a pattern by the Government which

aims to eliminate unfair and unbalanced advertising.



The trouble is that as the marketing environment becomes more

competitive and technological advantages are rarely sustainable,

comparative advertising will become even harder not only to produce but

to police.



The recent squabbling between various mobile phone companies over their

disparaging remarks about each other’s tariffs may only be a taste of

what is to come. How long before anybody can say what an ’honest’ ad is

any more?



john.tylee@haynet.com



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