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Comparative advertising: what fashion retailers need to be aware of

With December approaching, competition amongst fashion retailers for the lucrative Christmas market has already begun.

Law

As ever, marketers are fiercely competing for the most eye-catching promotions over the festive period and comparative advertising can be an effective way of doing this.

So how far can retailers go if they want to compare their products, or prices, with a commercial rival? Similarly, what are the options if a rival brand publicly promotes their products as better, or cheaper, than yours?

Direct price comparisons

If retailers want to make direct price comparison with their rival’s products, they have to follow very specific rules.

The main issue is that only the prices of like-for-like products can be compared. While this may seem fairly straightforward, it is not as simple as retailers may think. For example, are two pairs of leather gloves really like-for-like products if one pair is made with a superior type of leather? If one of your products is the subject of a negative price comparison by a rival, you may wish to challenge the legality of the promotion on these grounds, particularly if you feel your product is of superior quality. However this is a complex area of the law and retailers have experienced difficulties challenging advertisements on these grounds.

The other more obvious issue is that the prices on which a comparison is based must be accurate. If the promotion is an ongoing one, the promoter needs to make sure that the price comparison remains accurate for the duration of the promotion. If a price comparison becomes misleading because a rival has dropped their prices, the promoter would need to take immediate steps to withdraw, or amend the promotion. 

With on-line price promotions it is particularly important to keep track of a competitor’s prices if you are running a direct price comparison as the prices can change at the click of a button.

General comparisons                              

Not all comparative advertising involves a direct comparison with a competitor’s product. Sometimes retailers use expressions such as “our new leather boots: unrivalled quality” or “silk scarves: we charge you less”. While no competitor is named in these examples, the ASA would take the view that the advertiser is effectively saying its prices or quality cannot be beaten by a competitor. If a complaint is made, the retailer in question would be expected to substantiate their claim. If they can’t do so, the complaint is likely to be upheld. Such claims can be very hard to prove.

If your brand is targeted by comparative marketing, you should consider whether you can challenge the promotion as unfair or misleading. If you are thinking about launching this kind of promotion yourself, make sure you have considered the legal position to ensure your promotion isn’t halted prematurely by the ASA.

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