Rupert Earle of Bates Wells Braithwaite acted for the Independent Reviewer of the Advertising Standards Authority Adjudications, and for the Advertising Standards Authority, in their successful defence of a legal challenge by Sainsbury’s.

Sainsbury’s complained to the ASA about a Tesco ‘Price Promise’ campaign with the strapline “If your comparable grocery shopping is cheaper at Asda, Sainsbury’s or Morrisons, we’ll give you a voucher for the difference at the checkout or online”. Sainsbury’s said that some of the products compared (eg certain teabags, eggs, ham, fish fillets) were not comparable, because Sainsbury’s products were certified to have been sourced to superior ethical or environmental standards or were of UK rather than overseas provenance. They said that the products compared did not meet the same needs or same purpose test set out in the EU Directive on permissible comparative advertising and that the comparison of prices of such products was misleading.

The ASA found that Tesco has a rational basis for comparing these products, that the comparison was not misleading, and that the products were interchangeable as far as the average consumer was concerned and that the comparison thus met the test in the EU Directive. The Independent Reviewer found no substantial flaw in that decision.

On 10 November Mr Justice Wilkie dismissed Sainsbury’s claim for an order quashing the Independent Reviewer’s decision. The Judge held, applying the CJEU decision in Lidl v Vierzon (2011), that the ASA could lawfully find that competing products with differences in non-price elements (such as ethical or geographical origin) could still be found to be interchangeable. Although he left open the exact test to be applied (eg a difference in particular characteristics which would be determinative to the average consumer), he said that its application was a judgment for the experienced regulator to make in each particular case, and there is no need to commission market research to reach a conclusion. He was concerned that Tesco had compared some products (lawfully) sourced from a certified source (eg an MSC certified fish farm) without paying the certification fee, but the products were the same.

This is the first legal challenge to the ASA’s decision-making in respect of comparative advertising to reach court. Competition is fierce and the supermarkets were prepared to spend hundreds of thousands of pounds in the litigation. But the outcome suggests that the court will not readily interfere with the regulator’s decision making in this area.

 

 


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Rupert Earle

Partner and Head of Media Litigation

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+44(0)20 7551 7609

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r.earle@bwbllp.com
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Posted on 11/11/2014 in BWB News

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