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.
Also known as: denigrate, discredit, defamation, comparison
Although the Code permits comparative advertising, marketing communications must not discredit or denigrate another product, marketer, trade mark, trade name or other distinguishing mark (Rule 3.42). This rule concerns identifiable companies and products, although ads need not necessarily name companies to identify them (see below).
Marketers that make comparisons should be mindful of the relevant rules, especially Rule 3.35, which states that comparisons must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price. Claims that go beyond a robust and objective comparison of services may be considered denigratory.
In 2024, the ASA considered two ads for a deodorant product featuring an image of a fictitious deodorant product named “Mynx”, which stated “£733 million is wasted on unwanted gifts each year” and “most unwanted” in reference to Mynx. Unilever UK Ltd (trading as Lynx) challenged whether the ads for Fussy Ltd discredited or denigrated their product. The ASA considered the fictitious product’s branding was almost identical to that of Lynx, and that because ‘Mynx’ was readily recognisable as being a reference to Lynx, both posts included a comparison with an identifiable competitor. It considered the terms “unwanted gifts” and “most unwanted” to be pejorative comments which suggested Lynx products were of lower value and less desirable in comparison to its competitor products. The ASA concluded those comments, together with the name ‘Mynx’, went beyond a robust and objective comparison, and discredited and denigrated the Lynx brand. (Fussy Ltd, 19 June 2024).
Rule 3.42, which prohibits the denigration of another product, can still be applied irrespective of whether comparative claims are true or accurate, if such claims are expressed in a manner that is insulting, derogatory or demeaning. For example, the ASA investigated ads for a vitamin supplement which included a table comparing vitamin levels of the product with those of other competitor products, including Berocca. The table was accompanied by the claims “Dump the Junk” and “Dump the sugars, chemicals and fillers”. In a further video, Berocca were referred to as “the bad boys”, and it stated “They don’t want to look after your health like we do”. The ASA considered the term “junk” was pejorative, and the comments alongside the table went beyond a factual and informative comparison about the relative nutritional value of the products, and denigrated or discredited another product. (Tonic Nutrition Ltd, 15 May 2024).
Similarly in 2014 an ad for Sky was presented as a conversation between a customer and Virgin Media, comparing the two services. The ad was found to incorrectly suggest that the traffic management policy affected a large number of Virgin Media customers, and that the way in which the information was presented went beyond an objective comparison and denigrated Virgin Media’s brand. (British Sky Broadcasting Ltd t/a Sky, 08 January 2014).
Although the Code allows marketers to state an opinion about the qualities or desirability of their own products, they should be mindful that expressions of opinion that allude to a competitor’s dishonesty or sharp practices, or criticising a competitor’s product, are unlikely to be acceptable. In 2021, the ASA ruled against an ad for a building consultant suggesting that a competitor damp specialist company was fraudulent, which included claims such as ‘Fraud warning’ and ‘scam’. The ASA considered the ad attacked the competitor’s business practices and created the impression that the company and its staff were dishonest and took part in illegal behaviour, and was therefore denigratory in nature. (Campylite Investments Ltd, 31 March 2021).
The ASA also considered an ad for a funeral services provider, which featured a comparison table comparing the advertiser’s service against competitors ‘Co-op Funeralcare’ and ‘Simplicity’, in various categories. One category stated “Large nationwide chain known for taking advantage of vulnerable customers**”, next to which it stated “No” for Neocremations, and showed a tick for both ‘Co-op Funeralcare’ and ‘Simplicity’. The ASA considered that the ad suggested that the named competitors operated in an unethical manner, which went beyond justified critical comment and denigrated those companies. (Serenity Technologies Ltd, 5 August 2020).
Other examples of ads deemed denigratory by the ASA, due to going beyond objective critical and suggesting illegal or dishonest practices, include an ad for a taxi driver’s association in 2018. The ad stated “Uber- unsafe for passengers, unsafe for road users. Why trust them both with your data?”, and an image depicted an arm grabbing a purse from a pedestrian’s bag from a car window. (Licensed Taxi Drivers Association Ltd t/a LTDA, 03 October 2018). Similarly, the ASA upheld a complaint about a car buying company that compared their service to that of a competitor and included a testimonial stating “My warning to anyone reading this is be careful who you deal with and in my experience never deal with Varooma, they should not be allowed to trade”. (Car Cash Point Ltd, 20 December 2017).
Marketers should be careful even when they are not naming their competitor: in markets where competitors are few, it might be clear to readers who or what the comparison is with, irrespective of whether they are explicitly identified. In 2012, the ASA ruled that a magazine ad for a safety jacket for horse riding was denigratory even though it did not name the competitor, because an article that featured on page 6 of the magazine made it possible to identify the competitor (Point-2 Equine Ltd, 28 March 2012).
In addition to the Code’s requirements, marketers who publish advertisements that falsely denigrate the reputation of people, businesses or their products could risk liability under the law of defamation or malicious falsehood. If you are concerned about the legality of a proposed advertisement, we recommend you seek legal advice.
See also ‘Comparisons: General’, ‘Comparisons: Identifiable competitors’ and ‘Legality’.