Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
The ASA has investigated multiple comparative claims which were based on customer surveys, votes, or third-party awards. Many of these claims have been found to breach the CAP Code.
For general advice on comparative claims, see Comparisons: general.
Comparisons with identifiable competitors
Substantiation
Marketers making claims based on awards or surveys should consider how consumers are likely to interpret the claim in the context of the ad. If consumers are likely to understand the claim to be objective, the advertiser must hold evidence to substantiate the claim as consumers are likely to understand it (rule 3.7).
Self-reported consumer data or other subjective data will not be sufficient to support a claim that would otherwise require objective substantiation. Marketers should not rely on consumer perception data, or on the fact that they have received awards, to support claims for which they do not hold the relevant, objective substantiation.
For instance, in 2021 the ASA decided consumers would understand Three’s claim “Best network for data” to be based on a comparison of a range of mobile-data-related objective performance measures, i.e. coverage and speed, from a range of mobile data networks. The ASA ruled that consumers would expect Three to have been rated as having the best overall performance based on those measures. The claim was based on Three receiving an award, which was decided by a panel of judges and a consumer survey. The ads suggested the claims were based on objective technical evidence. Because this was not the case, it was considered misleading (Hutchison 3G UK Ltd t/a 3, 24 February 2021).
The claim “BEST DISHWASHER TABLET ON TEST”, which appeared underneath the text ““Which? Best Buy Dishwasher Tablets February 2019” and an image of a trophy, was considered acceptable in an ad for fairy dishwasher tablets. The ASA considered consumers would interpret this to mean that Which? had tested the performance of a range of dishwasher tablets, including the best-selling products in the UK, using its own testing criteria, and that the advertised product had received the highest score. Because this was the case, the ASA concluded that the claim “BEST DISHWASHER TABLET ON TEST”, as consumers would understand it, had been substantiated and was not misleading. The ASA ruled that consumers would not expect Which? to have tested every dishwasher tablet available in the UK(Procter & Gamble UK, 27 May 2020).
Even if the criterion for a claim is subjective (for example, taste or satisfaction), the claim will still be considered objective if it communicates the outcome of a customer survey.
For example, ads for Ristorante pizza stated ‘Best Pizzeria Taste at home. 9 out of 10 agree’, based on a self-reported survey. 23% of participants were found to have purchased Ristorante pizza previously, which was a disproportionate number compared to a random sample of the public. The survey did not list other pizzas for consumers to select as ‘best-tasting’, nor did it ask participants which other pizzas they had tasted, and when. Therefore, the survey omitted a mechanism by which participants who had never tasted the comparator products could be filtered out. The ad was considered misleading on that basis (Dr Oetker (UK) Ltd, 10 August 2018).
For more information on how to evidence claims based on consumer surveys, see Substantiation: Consumer surveys and sample claims.
Comparisons with identifiable competitors
Ads do not need to explicitly identify the competitor or product being compared in order to be subject to the rules on comparisons with 'identifiable' competitors. If a consumer can identify at least one competitor or competing product that is being compared, whether or not it is identified explicitly in the ad, rules 3.33 – 3.37 will apply. For further insight into the relevant rules and considerations for these types of comparisons see Comparisons: identifiable comparisons.
Code rule 3.35 requires that comparisons must “objectively compare one or more material, relevant, verifiable, and representative feature of those products, which may include price”. To make a claim verifiable, the advertiser should set out the relevant information in the ad, or explain how the information used to make that comparison can be checked by the audience. For detailed advice on this, see Comparisons: Verifiability.
By way of example, in 2021, the ASA upheld complaints about the claim “The UK’s Best Network”. Because the ad did not include, or direct consumers to, information which showed that the advertiser’s network had been found to perform better than the rest of the market based on objective performance measures, the claim had not been verified (Vodafone Ltd, 28 July 2021).
In 2021, the ASA also upheld complaints against the claim “on the network voted Britain’s Best for Coverage”. The basis of the claim was based on the participants’ subjective perceptions of their own networks. The advertiser did not hold evidence that a range of networks had been rated based on a robustly conducted comparison of a range of appropriate, relevant and objective performance measures, which breached rule 3.35 (Telefonica UK Ltd, 22 September 2021).
For further advice on how to verify comparative claims based on awards and surveys, see Comparisons: Verifiability.