15 Steps for Product Comparisons in Advertising

Make sure that all “claims”[1] are truthful, substantiated, fair and non-deceptive

  • Avoid any statement/comparison (express or implied) that:
    • Is false, misleading, unfair[2] or deceptive[3]
    • Is literally true but potentially deceptive (i.e. it could create a false impression)
    • Omits material information consumers should know (i.e. the entire statement must be true)

Prior to publication, substantiate[4] all claims

  • Substantiate “material claims”[5], “express claims”[6] and “implied claims”[7]
  • If the endorser claims to have used the product(s), verify the endorser is a “bona fide user”[8]
  • Have the endorser review all claims/statements attributed to him/her in the test/comparison
  • Have the endorser sign an affidavit and release agreement in which the endorser states:
    • The comparison is based on endorser’s honest opinions, findings and beliefs or experience
    • The comparison is in regard to the products;
    • The endorser actually performed a test/comparison of the products;
    • The endorser accepts all statements attributed to him/her in the comparison as true; and
    • The endorser would continue to make such statements.

Do not take the endorser’s comments out of context or adjust the comments in any way.

  • Do not use only favorable portions of a test/comparison but leave out any unfavorable portions
  • Otherwise, that could be considered false, misleading, unfair and deceptive

Avoid/Disclose any “material connections”[9] with the endorser, such as:

  • Was the endorser compensated in any way for his/her testimonial (e.g. payment or free products)?
    • (NOTE: do not have to disclose payments to experts or celebrity endorsers)
  • Were there any other material connections that consumers would not expect?
  • Was the test/comparison scripted in any way?

Focus on product claims

  • Avoid bad-mouthing a competitor or a competitor’s business practices

Avoid subjective claims

  • Some “puffery”[10] is allowed. Avoid this. However, if unavoidable, be sure to do all of the following:
    • Make general, not specific, statements;
    • Make non-measurable statements;
    • Make statements couched in opinion and not fact; and
    • Make subjective, not objective, statements.
      • (NOTE: stating in general terms that one product is superior is likely allowed, but this is not guaranteed, which is why it is best to avoid puffery and subjective claims.)

Confirm that the comparison is consistent with general consumer experience.

  • Is it representative of what other consumers will generally achieve in using the products?
  • If not, disclaim or qualify accordingly (e.g. “results not typical”)

Disclose all other disclaimers and qualifiers to claims

  • Disclaim, limit, modify and/or explain claims where necessary
  • Do not use footnotes for disclosures
    • Disclosures must be in proximity to the claims
    • Disclosures must be clear and conspicuous (i.e. don’t hide them in small font)
  • Cannot disclaim untruths
  • Disclaimers may not be used to contradict a representation in your ad
  • Again, disclose any “material connections” with the endorser

Avoid exaggerating the results of tests/comparisons or research.

  • Avoid hyperbole, do not take test results out of context and reports results as they actually occurred
  • Was it an apples-to-apples comparison?

Avoid making scientific claims without scientific evidence

  • With expert endorsers, make sure the test/comparison:
    • Is based on an exercise of the expert’s expertise in evaluating the products;
    • Is based on expert’s honest opinions, findings, beliefs or experience (see above)
  • With analytical comparisons, make sure the test/comparison:
    • Is based on side-by-side spec sheets with those of a competitor; and/or
    • Is based on established, reasonable, documented side-by-side comparison processes

If still unsure about the level substantiation required (i.e. what still needs to be proven):

  • Take (private) surveys that are:
    • Conducted through reliable, independent firms; and
    • Determine the net impression left by the ad (what do consumers think?)
  • Based on the surveys, determine what else must be substantiated, and substantiate it

After publication, regularly touch base with endorser

  • Make sure endorser’s beliefs have not changed
  • Make sure endorser would continue to make such endorsements

Always respect Intellectual Property Rights

  • Trademarks[11]
    • Compare visible/verifiable facts
    • Clearly identify the owner of competing trademark
    • Make sure there can be no consumer confusion as to the source of the mark
    • Avoid presenting a competing product in a false light
    • Do not alter the competitor’s marks in any way
  • Copyrights[12]
    • Includes any original expression of an idea (commercials, brochures, displays, websites)
    • Excludes ideas and facts
    • Who owns the copyright? Author, Employer, Assignment from Consultant/Independent Contractor

Always respect publicity rights

  • Beware of name, likeness, image, signature or other personal characteristics
  • Get written authorization (e.g. a signed release form) to use name, likeness, etc.

Always respect privacy rights

  • Do not intrude upon one’s seclusion and do not publicize private facts
  • Do not publicize false/misleading information that places a person in a false light
  • Get written authorization (e.g. a signed release form) to use name, likeness, etc.

[1] Claims: statements of fact subject to being proven or disproven; this includes comparisons.

[2] Unfair: causes or is likely to cause substantial consumer injury.

[3] Deceptive: contains a misrepresentation or omission that is likely to mislead consumers; the deception must be “material” to consumers (i.e. affect a consumer’s choice or conduct regarding a product); e.g. saying your product is “waterproof” when it is only water resistant.

[4] Substantiation: some objective documentation that verifies a claim; a “reasonable basis” to support your claims

[5] Material Claims: these can include (i) claims about the central characteristics of the product or service; (ii) performance, cost, quality, durability, purpose, effectiveness or warranty of the product; (iii) a finding by a governmental agency about the product.

[6] Express Claims: the literal meaning of your statements

[7] Implied Claims: the potential subtext of your statements; Implied Claims include claims that create a “net impression” about the product or service or anything a consumer might interpret from your claims.

[8] Bona Fide User: a person who has actually used the product by the time a statement/claim is given.

[9] Material Connections: any relationship that might affect the weight or credibility of the endorsement; i.e. is there any connection that, if known by a consumer, might affect that consumer’s decision with regard to the products?

[10] Puffery: exaggerations, blustering and/or boasting (e.g. “The Ultimate Driving Machine”); general, subjective statements of opinion; basically, exaggerated talk that a reasonable consumer would not believe to be a factual claim upon which he/she would rely.

 

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