Ask the Legal Expert

Q: We have a new product that we want to advertise on local television. We believe that our product is much better than a similar product sold by our main competitor. Can we refer to our competitor’s product in our advertising?

Yes, you can reference a competitor’s product in your advertising, but it is important to do so carefully. This type of advertising, known as “comparative advertising”, is heavily regulated (both by statute and case law) and is often tricky to navigate successfully.

If you are looking to publish comparative advertising, some of the key issues that you may want to consider are:

Any comparative claim should be very clear because an ambiguous claim is more likely to mislead consumers, increasing the risk of a legal challenge.

You need to ensure that the products being compared are genuinely comparable, meaning that they should be intended for similar purposes or be capable of meeting similar needs.

Your comparison should focus on relevant, verifiable features, and be grounded in facts.

If there is a fair comparison to be made, the content of the advertisement must not be misleading or take unfair advantage of any relevant intellectual property rights that your competitor owns.

In addition, if your advert’s comparison includes unsubstantiated, false or misleading claims, which cause your competitor serious financial harm, it could amount to defamation.

If you do refer to your competitor’s product in your advert in a way that breaks the rules, the consequences can be significant. Regulators, such as the Competition and Markets Authority (CMA), can bring enforcement proceedings on behalf of businesses and consumers. These could result in you having to withdraw the advert and, in serious cases of misleading advertising, even criminal liability. If your competitor brings a successful defamation claim, you could be made to pay them damages and be forced to remove the advert.

Q: We have developed a product which we believe will be beneficial for the environment and want to refer to this in our advertising. The deadline for the advertising copy is fast approaching although we have not had time to fully test the green credentials of our product. What legal risks should we be aware of if we do this?

Recently, regulators have become increasingly concerned with “greenwashing”, which is where organisations make misleading claims about how environmentally friendly their products or services are. Including this type of environmental claim in your advert, without having established its accuracy, risks attracting claims or complaints from consumers, or investigations by the Advertising Standards Authority (ASA) or the CMA.

The ASA oversees self-regulatory advertising codes that specify that the basis of any environmental claims must be clear, and that unqualified claims could be considered misleading if they are not supported by evidence.

Additionally, adverts that make false or misleading environmental claims, which cause (or are likely to cause) the average consumer to buy a product, risk being deemed misleading and in breach of the law.

In this case, if you advertised your product as being ‘beneficial for the environment’ without supporting evidence, your advert could be deemed misleading and in breach of the law, or in breach of the advertising codes.

There are potentially serious consequences to breaching these rules. In terms of the advertising codes, the ASA could also investigate the advert, publish an adverse ruling, and request that it is withdrawn or amended. The ASA’s legal powers are limited, but its decisions can result in reputational damage, and act as the basis for further legal action. If such action is taken by the CMA, the potential consequences range from consumer claims for compensation to potential criminal liability.

Q: We want to run a marketing campaign for our new product and need to tell as many people about it as possible. We intend to send a series of emails to people on our customer database and we have also purchased a few mailing lists which give us details of a lot of potential customers. Can we send our marketing emails to all of these people?

It is unlikely that you can send marketing emails to both groups of people without doing so illegally, as UK data privacy laws limit who can receive these types of emails.

If the recipients are individuals, you can send them marketing emails if they have given clear, prior consent to receive them. Alternatively, if they are existing customers who have previously bought, or negotiated for, a similar product, you can send them marketing emails, provided you gave them an option to opt-out when you first collected their details and continue to offer this option in each email.

So, before sending any marketing emails, you must ensure that one of these conditions is met. If you have had no prior contact with anyone on the list of potential customers, it is very unlikely that you will be able to send them marketing emails without first obtaining their consent.

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