In a world of light consumer demand and heavy consumer choice, comparative advertising can be an effective tool for creating business awareness. However, a recent Court of Appeal decision serves as a reminder to carefully assess not only the factual accuracy of an advertisement, but its impression of accuracy on consumers.
Facts of the case
Retail optometry giant Specsavers ran two similar comparative advertising campaigns featuring one of its main competitors OPSM in 2010. The crucial comparison in each campaign was the price of two pairs of ‘progressive glasses’ from the two respective retail outlets.
In the first Specsavers campaign, the screen showed the following paragraph in bold font:
“At Specsavers, you can get two pairs of our lowest priced progressive glasses and pay no more than $399 in any store you visit. But at OPSM, we found that two pairs of their cheapest progressive varied by over $200 from store to store, anywhere up to $976 for two pairs”.
The words “up to” were represented in half size font to the remainder of the paragraph. The second advertisement promoted a similar comparison with the words “as little as” and “as much as” also represented in smaller font and similar small qualifying print.
The Court of Appeal noted that the “anchoring effect” the top price for OPSM’s glasses had in the advertisements was significant. Consumers would potentially “take home” the message that the average price of OPSM glasses was $976 and the price of Specsavers’ $399. This effect was exacerbated by use of the words “as much as” and “up to” in smaller font to the remaining words in the television campaigns. The act of comparing the most expensive OPSM glasses with the cheapest Specsavers glasses was, in effect, not comparing apples with apples.
The Court highlighted that the qualifying references or “fine print” in the advertisements was too small and likely to be missed by the average consumer. With a fleeting timeframe and inattentive viewers, it is the overall impression an advertisement portrays that must be held up to the tenets of the Fair Trading Act.
Take Home Message
Comparative advertising can help consumers make informed purchasing choices when choosing between competing products. While the Fair Trading Act permits puffery, businesses should be very careful when using comparisons about quality or price that may appear as fact. The New Zealand Advertising Standards Authority recommends the following set of guidelines for comparative advertisements:
- Where an advertisement makes a comparison, whether explicitly or implicitly, it should be clear with what the comparison is being made, i.e. price to price, dimension to dimension, feature to feature.
- The competition should be fairly and properly identified but never in a manner or tone of voice that degrades the competitive product or service.
- Where appropriate, comparative advertising claims must be supported by documentary evidence which is easily understood. Where technical data is submitted it should be accompanied by a summary of the relative comparative points, written in layman’s language.
- If the advertisement refers to a competitive test, such tests should have been conducted by an independent and objective body so that there will be no doubt as to the independence of the results. In all cases the test must be supportive of all claims made in the advertising that are based on the test.
- The advertising should never use partial results or stress insignificant differences to cause the consumer to draw an improper conclusion.
- Advertisements should not make unjustifiable use of the name or initials of any firm, company or institution nor take unfair advantage of the goodwill attached to the trade name or symbol of another firm or its product or the goodwill acquired by its advertising campaign.
Is important when creating comparative commercials that not only the message portrayed is accurate, but it is clearly accurate. The Specsavers case serves as a lesson to advertisers to scrutinise the overall impression a prospective advertisement may have – taking due consideration to the inattentive and distracted nature of the average viewer. The safest approach to any advertisement is to scrupulously test the advertisement on prospective viewers and to obtain sound legal advice on any comparison that takes place. Failure to heed these advertising guidelines could result in a campaign being pulled from the air, wasting the thousands of dollars it took to create.