The Committee of Advertising Practice (CAP) that sets out the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) has provided some additional assistance on the making of a comparative advertising claim, particularly with reference to recent ASA adjudications.
The CAP Code requires that comparisons with identifiable competitor products “must objectively compare one or more material, relevant, verifiable and representative feature of those products” (Rule 3.35).
What is meant by verifiable?
CAP advise that advertisers give readers enough information about the comparison to understand it and include a signpost in the ad to that information. If the checking requires special knowledge most consumers are unlikely to have, readers should be able to get a knowledgeable and independent person or organisation to verify the comparison.
1. Verify the comparison even with multiple products;
2. All necessary information should be available to consumers
Perhaps the most straightforward way to ensure comparisons are verifiable is to direct readers to a website that contains a list of all the features (such as the products and prices) of the comparison, for example by including the claim “prices can be verified on www.thiswebsite.co.uk/comparisons/date”. Merely including a website or postal address without stating that readers can verify the comparison there might be insufficient. It also might not be sufficient for marketers to cite a third-party website, eg MySupermarket.com in the case of grocery retailer price comparisons, without telling readers the products used in the comparison.
The advice applies to all forms of comparison i.e. an ASA ruling (Gatwick Airport Ltd, 12th August 2015) considered an ad that contained a comparison of the number of people likely to be affected by noise at two proposed runways and concluded that because it did not include any information regarding the source of the figures, the claims were not verifiable and breached the Code.
Being at a slight remove from the comparison does not assist if competitors are identified. One advertiser questioned whether their ads were subject to the verifiability requirement, because they did not contain a price comparison but instead referred to their price match scheme. The ASA ruled that because the ad identified a number of competitors the verifiability requirement did apply, and the advertiser should signpost consumers to their methodology (Wm Morrison Supermarkets plc, 26 August 2015).
However, marketers should also be aware that competitors do not need to be explicitly named in an ad for them to be identifiable. Whether a competitor or its products are identifiable will obviously depend on the ad, the claims, the audience, the context and the nature of the market in which the advertiser operates. “Leading” claims by their nature are likely to be seen as a comparison with all competitors (Liverpool-Kop.com, 27 May 2015).
Comparisons based on commercially sensitive or confidential data should be made with care since in the case of some comparisons the ASA may decide that such information should be made available to consumers and competitors when requested.