Comparative advertising: where the limits are

Comparative advertising, meaning advertising that identifies a competitor or their products, is permitted in European law subject to a list of cumulative conditions.

Cumulative means all of them. Satisfying six of seven makes the advertising unlawful.

The conditions

The comparison must not be misleading. It must compare goods or services meeting the same needs or intended for the same purpose. It must compare objectively one or more material, relevant, verifiable and representative features, which may include price. It must not discredit or denigrate the competitor. It must not take unfair advantage of the competitor's reputation or trade mark. It must not present goods as imitations of a protected brand. And it must not create confusion between the advertiser and the competitor.

Comparing like with like

The most common failure. The products compared must meet the same needs.

Comparing your premium service against a competitor's entry-level product, or your annual price against their monthly, or a bundled offer against an unbundled one, fails the condition even if every number is correct.

Verifiability

The features compared must be verifiable, which means the recipient must be able to check them, or the advertiser must be able to substantiate them on request.

That excludes subjective claims. "Better designed" is not verifiable; "18 per cent lighter, measured to standard X" is.

Prices

Price comparison is expressly permitted and requires care.

A price comparison published in March using February's competitor prices is misleading once those prices change, and the obligation to keep it current sits with the advertiser.

Denigration

Accurate criticism of a competitor's product is permitted; ridicule, insinuation and attacks on the competitor as a business are not.

The line is between comparing the products and attacking the competitor. Humour at a competitor's expense is where advertisers most often cross it.

Trade marks

Using a competitor's trade mark to identify them in a lawful comparison is permitted. Using it in a way that trades on its reputation or suggests a connection is not.

Practical advice

Comparative advertising invites a response. Assume the competitor will examine every element and take advice before publication, not after the letter arrives.