The Court of Justice of the EU (CJEU) has given guidance on the use of price comparison in advertisements for consumer goods.
In a reference from a French comparative advertising dispute between Lidl and Leclerc supermarkets (Lidl SNC v Vierzon Distribution SA C 159/09, 18 November 2010), the CJEU has ruled that comparisons based on price may not meet the Misleading and Comparative Advertising Directive 84/450 (MCAD) criteria for legitimate comparative advertising where:
- the goods compared are selected by the advertiser to give an impression of cheaper overall prices at their supermarket compared to another where this is not necessarily the case (this may be misleading under Article 3a(1)(a) MCAD); or
- the advertiser does not specifically and individually identify the difference between the products that are compared (as this may not be an objective comparison as required by Article 3a(1)(c) MCAD).
The comparison advert was part of a Leclerc (Vierzon) newspaper ad campaign from 2006, which featured till receipts from each supermarket, using general descriptions rather than brand names of 34 items which showed Lidl to be much more expensive than Leclerc. Leclerc's advert also carried comments such as "...the proof is E. Leclerc is still the cheapest".
Lidl claimed this was an infringement of the French Consumer Code; that the advertisement was misleading or even deceptive. Lidl argued that the selection of products had been made to make Leclerc's prices look favourable. Further, the comparisons were not necessarily of the same product made by the same producer or to the same quality.
The CJEU's answer to the referred question suggests that such advertisements will not be legitimate, since they may be misleading under Article 3a(1)(a) if consumers mistakenly believe the selection of goods is representative of the general level of prices compared to the other retailer or if other features of the compared goods were significantly different (other than price) and would affect the consumer's choice. Neither would it be on objective comparison of verifiable features if the consumer could not work out from the information provided by the advertiser which particular item was being compared (Art 3a(1)(c)).
The decision suggests that if businesses wish to use price comparisons legitimately in comparative advertising, these will have to be actual like for like (not own brand for famous brand equivalent, or economy pack/basics range for normal range, for example) unless the consumer is informed of the specific and individual differences.
The till receipts reproduced in the advert used general descriptions of 34 products, accompanied by their weight or volume – showing the total at Leclerc to be EUR 46.30 as against EUR 51.40 at Lidl. The slogans "Not everybody can be E.Leclerc! Low prices – and the proof is E.Leclerc is still the cheapest"; "In English they say 'hard discount' – in French they say 'E.Leclerc' ".
Lidl brought an action in the French Courts claiming that the advertisement was deceptive and misleading, both in terms of presentation and that Vierzon selected only products which placed Leclerc in a good light in relation to Lidl. Further the products were not truly comparable since their qualitative and quantitative differences mean that they did not meet the same needs. The till receipts did not allow customers to perceive the specific characteristics of the products or therefore to understand the reasons for the differences in prices claimed by the advert.
The CJEU confirmed that the previous case law and the recitals to MCAD sought a balanced approach of consumer and business interests and to encourage legitimate comparative advertising that informed the consumer and stimulated competition between suppliers. However, practices that distorted competition or were detrimental to competitors and had an adverse effect on consumer choice were to be prohibited.
Referring to its previous decision in I (C- Case C-487/07 – see our previous IP newsflash on that case), the CJEU stated that the MCAD criteria should be interpreted in a way most favourable to permitting advertisements which objectively compare the characteristics of goods or services, while ensuring at the same time that comparative advertising is not used anti-competitively and unfairly in a manner which affects consumer interests. For example, there is an interest in permitting comparative advertising in order to stimulate competition between suppliers to the consumers' advantage.
The CJEU held that:
- The fact that food products differ in qualities may still mean that the products compared meet the same needs or are intended for the same purpose, that is to say, that they display a sufficient degree of interchangeability.
- However, the MCAD condition that the comparison must be verifiable requires, that it must be possible to identify the goods in question on the basis of information contained in the advertisement.
- Such a price comparison advert may be misleading, in particular, if
- it is found, in the light of all the relevant circumstances and in particular the information contained in or omitted from the advertisement, that the decision to buy on the part of a significant number of consumers to whom the advertisement is addressed may be made in the mistaken belief that:
- the selection of goods made by the advertiser is representative of the general level of his prices as compared with those charged by his competitor and that such consumers will therefore make savings of the kind claimed by the advertisement by regularly buying their everyday consumer goods from the advertiser rather than the competitor; or
- all of the advertiser’s products are cheaper than those of his competitor;
- it is found that, for the purposes of a comparison based solely
on price, food products were selected which, nevertheless, have different features capable of significantly affecting the way the average consumer would exercise choice, without such differences being apparent from the advertising concerned.
In the UK MCAD was implemented via the Business Protection from Misleading Advertising Regulations 2008 (BPRs) and The Consumer Protection from Unfair Trading Regulations 2008. Article 3a(1) corresponds to BPR Regulation 4.