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
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
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
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
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