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
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
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
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.