In brief
- Advertisers must satisfy two fundamental requirements under the CAP Code when making comparative claims – substantiation and verifiability.
- Advertising does not need to explicitly identify a competitor or product to be comparative, so long as it is possible for a consumer to name at least one competitor or competing product.
- Advertisers must have up-to-date evidence which consumers are likely to regard as objective. This must be capable of substantiating the specific claim made, cover the full scope of the comparison, and signpost how the consumer can check the information used to make the comparison.
Background
Comparative advertising, when truthful and non-deceptive, is a source of important information to consumers and assists them in making rational purchase decisions. Supermarket price comparison ads where they advertise how much their basket of products costs compared with a rival supermarket's basket of the equivalent goods are commonplace, and are accompanied by small print to tell consumers where to check that comparison.
However, what happens where an advertiser does not explicitly reference a competitor but makes more general claims about its products being the best or the cheapest? Such ads may still get caught by the Advertising Standards Authority (ASA) comparative advertising rules, if they make an implicit reference to competitors and it is possible for a consumer to name at least one competitor or competing product. In two recent ASA cases, businesses had complained about a competitor's ad arguing that they were misleading, unsubstantiated and unverifiable. The two cases provide valuable insights into the potential pitfalls of competitive advertising and the stringent requirements imposed by the CAP Code.
Hammonds Furniture Ltd t/a Hammonds
The ASA upheld three complaints brought by Sharps Furniture Group against its competitor, Hammonds, concerning misleading promotional practices and unsubstantiated comparative price claims on their website.
The ad
The ruling concerned a banner ad and webpage on the Hammonds website. The banner ad stated: "Up to 40% off selected finishes + an extra 5% offer ends in […]" and included a countdown timer showing the time left in the promotion. A separate webpage titled "Why choose Hammonds?" featured text under the subheading "We won't be beaten on quality and price" stating "Because we design and make everything ourselves, we can offer you better quality furniture at a price others can't beat".
The ruling
The ASA considered how consumers would understand the claims on Hammonds' website.
The banner ad was found to be misleading because consumers would understand that the countdown clock referred to one promotion (when in fact it was two separate promotions) and the countdown was "likely to pressurise consumers into making a quick purchase without giving it proper consideration".
Hammonds believed consumers would understand the price claims made on its website referenced its price match promise. However, the website did not make any reference to this promise, nor provide a link to where information about it could be found. The ASA held that consumers would understand the claims to mean that Hammonds offered furniture at a lower price than its competitors. It therefore expected Hammonds to have evidence to substantiate those claims.
Hammonds provided spreadsheets detailing its price match claims and recent market checks it had carried out. However, Hammonds had only made seven price checks against a single competitor and its subsidiaries, which the ASA considered insufficient to substantiate claims that it offered furniture "at a price others can't beat". In addition, because it was not possible for Hammonds to make direct comparisons between its price list and those of its competitors due to its bespoke services, it was unlikely that it would be able to gather sufficient evidence that could substantiate or verify those claims.
Procter & Gamble UK t/a Ariel
The ASA upheld two complaints by Reckitt against Procter & Gamble's Ariel ad on the basis it was misleading and it included a comparison with a competitor that was not verifiable.
The ad
The TV ad for Ariel's 'The Big One' laundry pods featured a man standing in a supermarket aisle, holding a shopping list whilst looking confusedly at a large number of products labelled 'laundry additives'. A voice-over stated, "Pre-treat, pre-soak, post-soak. When did getting your clothes clean become such hard work? All that scrubbing and lemons and those extra products, really? But there's another way. The Big One, new from Ariel, has built-in pre-treat for double-stain and odour removal. So, it's just one and you're done".
The ruling
The ASA held the claim "just one, and you're done" had the effect of implying the product was as effective at cleaning clothes as all other laundry detergents when used in combination with one or more laundry additives. That meant the ad included a comparison claim against other laundry products (even though they were not explicitly mentioned and despite making a comparison with its own product, Ariel 3 in 1 pods, in the on-screen text in the ad). The ASA held that this would have led consumers to believe The Big One was as effective, and obtained at least the same results, as any laundry detergent in combination with any one of the large number of additive products that the supermarket scene suggested was on the market.
Ariel provided evidence which showed The Big One was as effective at removing stains as two Ariel 3 in 1 Pods and data which compared the efficacy of the product against a competitor, Persil 3 in 1 Bio Capsules, in combination with two versions of a Vanish laundry additive. However, because the ASA considered that consumers would understand the advertisement to mean that The Big One was as effective as all other laundry detergents regularly found in supermarkets, in combination with any one of a variety of additives, comparative data against only one competitor detergent product was insufficient. Further, the ad did not provide any information to ensure consumers could verify the comparative claim made on the efficacy of the product against competitor brands, nor did it include an adequate signpost to information that formed the basis of the comparison.
Takeaways
- Consumer perception trumps advertiser's intent: what matters is not what the advertiser intended to communicate but how the consumer would reasonably understand the claims in the ad being made. Even though neither the Hammonds nor Ariel ads named a competitor or made an explicit reference to them, the overall impression of the ads still constituted comparative claims.
- Ensure evidence matches the scope of the claim: before making any comparative claims, advertisers need robust, up-to-date evidence covering all competitors that consumers might reasonably understand to be included in the comparison. It is likely to be insufficient to rely on a small number of comparisons to back up ad claims. This may be difficult where you have bespoke products as it may be inherently impossible to provide like-for-like comparison data.
- Verifiability requires active signposting: ads should clearly explain how consumers can verify a comparison. One way would be to direct consumers to a website that contains information about the basis (e.g. products, methodology, test results etc.) of the comparison and make clear that this is how consumers can verify the claim.