When a supermarket compares the price of its own label product with that of an equivalent premium brand, is this necessarily misleading? The Broadcast Committee of Advertising Practice does not believe it is, so it is consulting on a change to the broadcast ad Code with significant implications, Ciaran Price reports.
Who: Broadcast Committee of Advertising Practice
When: The consultation ended on 4 May 2012
Law stated as at: 1 May 2012
The Broadcast Committee of Advertising Practice ("BCAP") have launched a consultation on an amendment to the UK Code of Broadcast Advertising ("the Code").
The change involves the removal of rule 3.39. This rule states that where price comparisons are made in advertising, the products compared must be "identical or substantially equivalent". Where a competitor has more than one similar product, an advertiser must make the comparison with the product which is most similar to the advertised product.
BCAP has delegated responsibility from Ofcom to maintain standards in broadcast advertising, and to prevent advertisements which may be misleading, harmful or offensive. Comparative advertising with identifiable competitors is covered by the Business Protection from Misleading Marketing Regulations 2008, which transpose the Misleading and Comparative Advertising Directive ("MCAD").
As MCAD is a 'maximum harmonisation' Directive, Member States may not exceed its requirements; BCAP is concerned that rule 3.39 of the Code is leading to confusion over what the minimum requirements for comparative price advertising are, and that in fact it exceeds the requirements of MCAD.
In BCAP's view, rule 3.34 of the Code already covers the situation adequately. This requires that "advertisements must compare products or services meeting the same need or intended for the same purpose".
3.39 "gold plates" EU ad comparison laws
3.34 sets out the minimum requirement set out in law, and to go further than this, as BCAP considers rule 3.39 does, gold plates the relevant EU law and is excessive and potentially confusing for advertisers.
For example, the current framework prevents advertisers from comparing the price of their own-branded products with a competitor's premium brands, as while they 'meet the same need' they are probably not the most similar products offered.
BCAP feels that even if 3.39 were to go, there would still be other rules which would prevent consumers from being misled and protect competitors. Examples given are rule 3.33, which has a general requirement that advertisements regarding a competitor's product must not mislead consumers, and rule 3.37, which requires that products with a 'designation of origin', (for example, Champagne or Roquefort) can only be compared with products with the same designation.
Why this matters:
BCAP's main aim in proposing the removal of 3.39 is to ensure that the Code is clear and accurately reflects the law, while maintaining protection for consumers from misleading advertising and for competitors from unfair practices. It considers that the remaining rules provide sufficient protection, and that additional guidance could be provided if required. The consultation closed on 4 May and it remains to be seen whether respondents agree that this is the case.