OPINION: CROWN ON ... COMPARATIVE ADVERTISING

Some say it’s the end of advertising as we know it. But will the new comparative advertising regulations really sound the death-knell for famous advertising lines such as ’probably the best lager in the world’?

Some say it’s the end of advertising as we know it. But will the

new comparative advertising regulations really sound the death-knell for

famous advertising lines such as ’probably the best lager in the

world’?



Under the regulations a comparative ad is one that compares, expressly

or by implication, an advertised brand with a competitor’s. All such ads

must comply with seven golden rules. Some of these, including ads that

take unfair advantage of a competing brand’s reputation, are more or

less covered by existing UK advertising rules. Others aren’t. For

example, comparative ads must now ’compare goods or services meeting the

same needs or intended for the same purpose’, and ’objectively compare

one or more material, relevant, verifiable and representative features

of those goods and services’. They must not ’discredit or denigrate’ a

competitor’s ’distinguishing marks, goods, services, activities or

circumstances’, present goods as ’imitations or replicas’ of a

competitor’s goods, or compare regional-specific foods (e.g. Parma ham)

with those from a different region.



The good news is that the new regulations set out a common standard for

comparative advertising across the European Union, which means

comparative ads will be permitted in countries, such as Germany, where

they were previously banned. Advertisers will also be reassured to know

they cannot be taken to court by consumers or rival companies for

breaching the regulations.



A regulatory complaint must in the first instance be submitted to

existing regulatory authorities and only if it fails to prevent the

continued use of an offending ad can the Office of Fair Trading seek a

court injunction.



More worryingly, from January 2001, consumer organisations will also be

able to seek injunctions.



There are also some concerns about the way the new regulations will be

applied. First, ads which until now haven’t been regarded as comparative

will be in the future and so will have to comply with the

regulations.



This means a Powergen ad might implicitly refer to British Gas without

naming it (British Gas is its main rival). However, an ad that simply

makes a generalised superiority claim - ’probably the best lager in the

world’ - which consumers would not understand as referring to a specific

rival brand, would not, in my opinion, fall within the definition.



Secondly, the requirement that a comparative ad may only compare

’material, relevant, verifiable and representative features’ of a rival

product could cause problems for comparative ads that seek to

distinguish on the basis of brand personality or subjective criteria as

opposed to quantifiable product characteristics such as price or

performance.



Finally, fears have been expressed about the absolute prohibition on

discrediting or denigrating a competitor’s products. Previously, such

conduct was allowed unless the denigration was unfair or ’without due

cause’. Does the new rule mean a comparative ad could be prohibited even

if the comparison is entirely accurate? In my view the courts will only

find an ad unlawful under this head if there is material inaccuracy,

unfairness or real distastefulness in the treatment of the competitor’s

brand. Any other approach might well breach the right to freedom of

expression.





Have your say at www.campaignlive.com on channel 4.



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