The ASA says ‘top’ is mere puff and CAP says ‘best’ is an objective superiority claim. Are they both right and is CAP copy advice unbeatable?
Topic: Comparative Advertising
Who: The Committee of Advertising Practice
Where: London
When: August 2003
What happened:
The Committee of Advertising Practice ('CAP') the ad industry body that draws up the Advertising Standards Authority-enforced Code of Advertising, Sales Promotion and Direct Marketing, published a helpful reminder on superiority claims in advertising.
An example of the type featured in an Advertising Standards Authority ('ASA') case report in July 2003. Comet objected to a national press ad by Currys which include the claim 'We're unbeatable on price'. An asterisk linked this to a footnote stating 'If you find any cheaper identical product or offer immediately available at another retail store within ten miles of Currys, we will not only match their price but also give you an extra 10% of the difference'.
Comet's beef was that this misleadingly implied that Currys prices were always lower than those of their competitors.
This wasn’t the implication, Currys said. With the small print qualification, they argued that the claim was obviously dependent on the explanation given against the asterisk. The ASA agreed and threw out the complaint.
Without the asterisked footnote, the outcome might have been altogether different, despite the fact that Comet's complaint was in any event misconceived. 'We are unbeatable on price' is not a claim to be lower than all competitors, but to be no more expensive.
Another acceptable parity claim mentioned in the CAP update is a recent claim by Virgin Life Insurance to be 'one of the cheapest insurers around'. Again this was acceptable, as Virgin was able to show that its rates were in the lowest quartile.
Then there are 'objective superlative' claims. CAP indicates that if one is claiming to be 'the best selling company' then the relevant products must have a greater market share than those of one's competitors. A claim to be 'leading' or 'number one' should probably be supported by evidence of having the highest turnover or that the product in question is the best selling.
Least problematic of all are subjective claims which amount to nothing more than traditional 'puffery'. CAP offers examples such as 'the tastiest curry this side of the subcontinent' or 'better than the Beatles', which are both clearly matters of opinion.
In the same category might be claims such as 'first choice for DIY' or 'the most enjoyable car buying experience you will ever have'. Also, or so it appears from a very recent finding, claims to be the 'top' in the relevant field are mere puff. A complaint was made about a regional press advertisement for a martial arts school operated by Matt Fiddes Black Belt Academy Limited. Tora Martial Arts Association objected to the claim 'UK's top martial arts school'. In response to the complaint Matt Fiddes could provide no comparative data, but the ASA considered that the claim would be seen as mere puff, an expression of the advertiser's opinion, and would not mislead.
Why this matters:
It is very helpful to have the CAP update on the issue, bearing in mind that a significant proportion of ASA complaint reports consistently deals with comparative advertising complaints. marketinglaw must still express concern, however, on three counts.
First of all, the line between general price claims and price promises is not always clear. Retailers should surely not be allowed to charge any price they like and then simply claim in advertising to be unbeatable because of a price promise (e.g. 'if you find it cheaper elsewhere we'll refund the difference') which is in practice not taken up by many punters. The Currys case reported above seems to fly very close to that line.
Secondly, if a claim to be 'number one' or 'leading' is regarded as an objective superlative claim needing substantiation, as the CAP update indicates, marketinglaw is not persuaded that a claim to be 'top' is in an altogether different category of claim and mere puff. We think Matt Fiddes was very lucky to get the result that it did.
Thirdly, we call into question a claim made by the CAP itself in its update. It closes by claiming on behalf of CAP that 'we can guarantee that you won't get better advice elsewhere'. This relates to CAP's copy advice service.
Apart from the fact that marketinglaw would always advise caution before ever using the word 'guarantee' in advertising or promotional material, is the guarantee correct in this context? For instance, what is better? Guidance from an advisor who accepts no responsibility for getting it wrong (CAP) or from an advisor who accepts that the buck stops here and he can be sued if the advice is negligent (Osborne Clarke)? We think we should be told!
