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.
Comparisons with identifiable competitors “must not mislead, or be likely to mislead, the consumer about either the advertised product, or the competing product” (rule 3.33), “must compare products meeting the same need or intended for the same purpose” (rule 3.34), and “must objectively compare one or more material, relevant, verifiable and representative feature of those products” (rule 3.35).
What makes a comparison identifiable?
What types of products and services can be compared?
How to compare products with significant differences
How to substantiate claims
What makes a comparison ‘identifiable’?
Whether a competitor or its products are identifiable will depend on the ad, its claims, the audience and context, and the nature of the market in which the advertiser operates. The ASA's interpretation of 'identifiable' has been necessarily broad to stay in line with the legislation that underpins the Code rules. As such, ads do not need to explicitly identify the competitor or product that they are comparing with to be subject to the rules on comparisons with 'identifiable' competitors. If it is possible for a consumer to name at least one competitor or competing product, rules 3.33 – 3.37 will apply.
For example, if a market is small, highly specialised or dominated by a few major players, the intended competitor(s) are usually likely to be very clear despite not being named.
Similarly, unqualified superlative claims are, by their nature, likely to be seen as a comparison with all competitors, for example, ‘the most efficient insulation on the market today’ (RoofSURE Ltd, 19 April 2023) and ‘world’s purest wipes’ (WaterWipes UC, 8 March 2023).
What types of products and services can be compared?
Rule 3.34 states that comparisons with identifiable competitors must compare products which meet the same need or which are intended for the same purpose. For example, a comparison could be made regarding the functionality of two differently branded vacuum cleaners. There is one exception to rule 3.34. Certain EU agricultural products and foods are given special protection by being registered as having a ‘designation of origin’. Products with a designation of origin can only be compared to other products with the same designation (rule 3.37).
Rule 3.34 was considered as part of two separate rulings in 2018. An ad for a car recovery service which compared their own service with that provided by a competitor was considered to not mislead consumers. Whilst the two services had different specifics, both products offered vehicle recovery after a breakdown and were therefore intended for the same need or purpose (Green Flag Ltd 09 May 2018). Similarly, a comparison between a part-exchange deal where customers could exchange cars, and a service which provided cash in exchange for cars, was not deemed to be misleading. The ASA considered there was a sufficient degree of interchangeability between the two services as both offered to take in the consumers’ vehicles and recoup the value of their vehicle (General Motors UK t/a Vauxhall, 07 February 2018).
Under rule 3.35, comparisons must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price.
Comparing products with significant differences
If the competitor’s product differs significantly from the marketer’s product and that difference is likely to influence a consumer’s understanding of the advertised comparison, marketers should acknowledge the difference in the marketing communication. The advertiser should ensure the basis of the comparison is clear to consumers.
In 2013, Sainsburys objected to price comparisons made by Tesco. Sainsburys believed important product attributes, such as the provenance or ethics of the product, had not been taken into account, and that some of the products were not comparable on this basis. The ASA considered that despite potential differences in areas such as animal welfare or provenance of the ingredients, the basis of the comparison was clear and did not breach the rules (Tesco Stores Ltd, 31 July 2013).
How to substantiate claims
Marketers must hold up to date evidence to support any claims that consumers are likely to regard as objective and which are capable of objective substantiation (rule 3.7). Given the requirement for claims to not mislead (or be likely to mislead) consumers about the nature of the advertised or competing product (rule 3.33), the ASA will uphold complaints if objective comparative claims are not backed up with evidence.
By way of example, in 2024 Lyma Life claimed their LYMA Laser was ‘the world’s most powerful home beauty device’. To substantiate the claim, Lyma Life provided a table which they said identified the five most powerful light therapy devices for at-home use. The ASA concluded this table did not demonstrate that the LYMA Laser was the most powerful home beauty device on the “world” market, as it was far from an exhaustive list (Lyma Life Ltd, 26 June 2024).
Similarly, the ASA upheld a complaint against AGA’s claim that their AGA eR7 Series range offers ‘the lowest running costs for any heat-storage cast-iron range cooker’. The claim was likely to be understood by consumers as a comparison with all other cast-iron ranges, and yet the ASA only received evidence related to two models from Everhot. The data (both in terms of its content and the amount of competitor products it related to) was deemed insufficient to substantiate the claim (AGA, 24 January 2024).
In 2022, The Business Catalyst, described the software of their competitor as a ‘chatbot’ which was designed ‘…to manage the new enquiries’. In a comparison table which detailed the features of competing products, ticks did not appear under RoboReception’s name for a number of features. The competitor believed the claims about their software were reductive, and omitted information about its other key functions. As the advertiser was unable to show that RoboReception was merely a chatbot, and that it was not capable of the omitted functionalities, the ad was deemed misleading (The Business Catalyst Ltd, 14 June 2023)
Self-reported consumer data will not be sufficient to support a claim that would otherwise require objective substantiation. Marketers should not rely on consumer perception data, or the fact that they have received awards, to support comparisons for which they do not hold objective substantiation. See Hutchison 3G UK Ltd t/a 3, 24 February 2021.
For further advice on how to substantiate comparative claims based on surveys and third-party awards, see Comparisons: Awards and consumer surveys.
How to make claims verifiable
Any ads which include a comparison with an identifiable competitor must be verifiable (rule 3.35). In order to make a comparison verifiable, ads must include or direct a consumer to sufficient information to allow them to understand the comparison and be able to check the claim was accurate, or ask someone suitably qualified to do so.
For more guidance on what information is required to make a comparison verifiable, and where and how this information should be provided, see Comparisons: verifiability.
For a list of available guidance on the different types of comparative claims, and more general information, see Comparisons: General.