Controversy over which beer brand sells the most in the UK has highlighted the importance of clarity in superlative claims and the new source of comparative advertising law just arrived by way of the Business Protection from Misleading Marketing Regulations 2008. James Baker tells the best story.
Who: Carlsberg and Stella Artois
When: May 2008
Where: London
Law stated as at: 30 May 2008
What happened:
A row has recently emerged between rivals Carlsberg and Stella Artois over claims that Carlsberg has taken over from the Belgian beer as Britain's best selling lager for the first time in almost two decades.
According to the latest AC Nielsen figures, sales of Stella brands were 491 million pints in supermarkets and off licences over the year to end of March 2008. During the same period, Carlsberg's sales have increased by 18% to 495 million pints, making it Britain's best selling beer. Stella has disputed these figures, saying that Carlsberg's include Carlsberg Export.
The president of InBev UK, the owner of the Stella brand, insists that Stella Artois continues to be UK's number one premium lager. He adds that the latest AC Nielsen Survey shows that when comparing like for like, Stella Artois actually exceeds the sales of Calsberg Export by a factor of three. AC Nielsen also confirm that as an individual brand, Stella Artois is still the UK's number one off-trade beer brand
Why this matters:
Being able to say that your beer is Britain's best seller is an important marketing tool, but would making such a claim in advertising be regarded as "comparative advertising" and as such controlled by new knocking copy rules just arrived in the UK?
Comparative advertising in the UK was regulated by the Control of Misleading Advertisements Regulations 1988 as amended by the Control of Misleading Advertisements (Amendment) Regulations 2000. These regulations have now been revoked by the Consumer Protection from Unfair Trading Regulations 2008 ("CPUT") which came into force on the 26th May 2008 and covers advertising aimed at consumers.
Comparative advertising rules
However, principally in order to protect businesses from advertising and other commercial practices, the Business Protection from Misleading Marketing Regulations 2008 ("BPRs") were also introduced and also come into force on the 26th May 2008. These regulate business to business advertising, but somewhat paradoxically given the title of the BPRs, they extend to comparative advertising in a way that would appear to cover knocking copy aimed at consumers as well.
Because of this "B2B/B2C" applicability, the BPRs do not in fact substantially change the rules on comparative advertising. This is still defined as "advertising which, in any way, explicitly or by implication, identifies a competitor or a product offered by a competitor."
Would this extend to "Britain's best selling lager"?
We have no UK case law that sheds light, but all the indications point to an affirmative answer.
The Adverting Standards Authority take on comparative advertising:
The Advertising Standards Authority ("ASA") has for long dealt with spats over "best selling", "No. 1" and other superlative ad claims under the CAP Codes' rules on comparative advertising.
Under the CAP and BCAP Codes, comparative advertising is permissible but the principles of fair competition must be respected. Points of comparison must be based on fairly selected facts which can be substantiated. The comparisons chosen must not give the advertiser an artificial advantage over his competitor and lastly the ads must not attack or discredit other products, services, people or advertisers either directly or by implication.
The comparison can be direct or implied and either objective or subjective. For example, claims such as "You've tried the rest, now try the best" are likely to be seen by the Advertising Standards Authority (ASA) and Committee of Advertising practice (CAP) as an implicit, subjective claim (ASA adjudication for K2 Indian Restaurant on 4th May 2005). Conversely, claims such as "We sell more properties than Estate Agent X" are likely to be seen as an explicit, objective claim for which the marketer would have to hold evidence (ASA adjudication for Emap Automotive Ltd on 23rd July 2003 and Kinsbourne Cars on 7th May 2003).
Marketers should also be careful if the basis of a comparative claim is unclear. In June 2005, the ASA considered a complaint against EasyJet's claim to be "the largest … low-cost airline in Europe" (ASA Adjudication for EasyJet on 29th June 2005). On one hand, EasyJet had more aircraft, more employees and more flights but the complainants, Ryanair, operated more routes and served more airports. Because the basis of the claim was unclear and could be judged on several relevant criteria, the ASA asked the advertiser to qualify the claim and make clear how it was judged.
ASA adjudications make it clear that in the area of comparative advertising, it is important to be able to back up your claims and also to be as unambiguous as possible. Given the apparent confusion about the Carlsberg/Stella Artois claims and sales data and whether these refer to individual brands or brand portfolios, these aspects would need to be clarified in any advertising.
The rules on comparative advertising
Also, Carlsberg would need to heed the BPRs. These state that comparative advertising is only permitted when the following conditions are met:
- that the advertising is not misleading or breaching the CPUT regulations;
- it compares products meeting the same needs or intended for the same purpose;
- it objectively compares one or more material, relevant, verifiable and representative features of the products;
- it does not create confusion among traders between the advertiser and a competitor;
- it does not create confusion among traders between the trade marks or other distinguishing marks of the advertiser and those of a competitor;
- it does not discredit or denigrate the trade marks or other distinguishing marks of a competitor or the competitor's products, activities or circumstances;
- it does not take unfair advantage of the reputation of the trade mark or other distinguishing marks of a competitor or the designation of origin of competing products; and
- it does not present products as imitations of products bearing a protected trade mark.
If these conditions are not adhered to, it would expose the unwary advertiser to enforcement action by the OFT and/or Trading Standards as well as the ASA.
