OPINION: Comparison regulations won’t sit well with UK law

The IPA is right to warn against a headlong rush into abandoning the lightly administered rules governing comparative advertising on British TV in favour of a leaden set of European Union-imposed restrictions.

The IPA is right to warn against a headlong rush into abandoning

the lightly administered rules governing comparative advertising on

British TV in favour of a leaden set of European Union-imposed

restrictions.



Not only are the new regulations a fudge that tries to bridge the gap

between ’protectionist’ countries such as Germany and others, such as

the UK, that shy away from statutory regulation but they open up British

advertisers to unprecedented legal risks.



The UK has a perfectly workable system that ain’t broke but which the EU

seems intent on fixing. The IPA knows this and is urging the Independent

Television Commission not to act precipitously. Deep down, the ITC may

know this too. But the Department of Trade and Industry will not look

kindly on any delay.



The trouble is that the European directive makes no clear definition of

comparative advertising, a term hitherto unknown in English law. Yet it

decrees that all new comparative advertising will be illegal unless it

satisfies a number of rules.



It’s a recipe for confusion. All advertising is ’comparative’ in that it

tries to persuade a consumer to buy one product in preference to

another.



Moreover, the new rule about ’objective’ comparison in ads is bound to

be interpreted more strictly by Germany and Sweden than more

laissez-faire states such as Britain.



What also of the directive’s outlawing of ads that ’discredit or

denigrate’ a rival’s trademark? British lawyers believe this is

inconsistent with existing UK law.



Just to add to this perplexing state of affairs, legal action against

rogue advertisers can only be taken by the Office of Fair Trading after

all ’existing means’ - including the ITC’s codes - have been

unsuccessfully used to stop the ad appearing.



But, as a media lawyer points out: ’All the ’existing means’ in the

world are not going to be able to enforce rules that they don’t

have.’



The IPA wants the courts to clarify the rules before the ITC acts on

them. With telecom companies ready to issue a writ at the drop of a

rival’s tariff, there will doubtless be plenty of opportunities.