Comparative advertising, which is sometimes called ‘knocking copy’, has always had a chequered history, but a recent European Court of Justice case may open the floodgates after the ECJ ruled that comparative advertising may be used to illustrate price differences even where the products are not identical.
The case arose when LIDL complained that newspaper advertisements placed by French retailer Leclerc were unfair. Leclerc’s advertisements showed 34 products available at its stores at lower prices than comparable (but not necessarily identical) LIDL stores. LIDL complained that there were both qualitative and quantitative differences between the products shown and that Leclerc had misled consumers by choosing for comparison only products which showed Leclerc’s prices to advantage.
Leclerc argued that comparing non-identical products was fair provided that the two products met the same needs of the consumer. In other words, if the two products are effectively interchangeable, they can be validly compared. Leclerc had made the differences between the products clear.
The ECJ accepted Leclerc’s argument, accepting that the advertising was neither unfair nor anti-competitive. However, if advertising was to give the false impression that the price difference illustrated in the advertisement was indicative of the differences in prices generally between the two stores, that would be a breach of the law.
The decision highlights the permissive approach which the ECJ takes towards such matters. However, the Court was at pains to point out that decisions as to whether the products compared are interchangeable would be a matter for the national courts.