Q&As

What are the rules on verification and substantiation in comparative adverts such as one that claims that a product is the ‘UK’s most awarded’ and ‘UK’s number one’?

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Published on LexisPSL on 12/06/2019

The following TMT Q&A provides comprehensive and up to date legal information covering:

  • What are the rules on verification and substantiation in comparative adverts such as one that claims that a product is the ‘UK’s most awarded’ and ‘UK’s number one’?
  • Nature of the claims
  • Substantiation
  • Verification
  • ASA adjudications
  • Wren Kitchens
  • Lidl
  • Airsorted
  • Trust Electric Heating
  • The Hair Loss Clinics
  • More...

What are the rules on verification and substantiation in comparative adverts such as one that claims that a product is the ‘UK’s most awarded’ and ‘UK’s number one’?

The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) prohibits any advertising that may materially mislead or be likely to do so (rule 3.1).

It also contains rules on:

  1. comparative advertising against both identifiable and unidentifiable competitors (rules 3.33–3.38)

  2. endorsements and testimonials (rules 3.45–3.52)

Nature of the claims

Claims made in advertising about a product (such as ‘best’, ‘leading’, ‘safe’ etc) may be subjective or objective. Subjective claims are permitted provided they are not misleading and do not imply that expressions of opinion are objective claims (rule 3.6).

Objective claims must be capable of being substantiated. Rule 3.7 of the CAP Code provides the following:

‘Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.’

In respect of comparative claims against identifiable competitors, rule 3.35 states:

‘[The advert] must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price.’

The Advertising Standards Authority (ASA) has been clear (see ASA advice note ‘Comparisons: General’) that adverts do not necessarily

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