Creative advertising

MC6052 – Creative Advertising and Copywriting Assignment -  Alexandra MacLeod/10034912

Comparative Advertising and the Law

This blog looks at comparative advertising and the regulations and asks the question, can a brand use comparative advertising creatively, whilst staying within the rules?  Examples from America are presented first to show the differences in U.S. and U.K. comparative advertising and then some UK examples which have been referred to the Advertising Standards Authority are presented with the ASA ruling and reasons. 

Comparative Advertising in the U.S.

Have you ever been to the U.S. and been surprised by how frequently and blatantly brands name and shame competitors’ alleged shortcomings in advertisements?  Take a look at these examples to refresh your memory:  

Sources: (Ellett, 2010; Gunelius, 2008; Tepper, 2013; Bhasin, 2011)

Here are two of my favourite U.S. examples:

Burger King vs MacDonalds

Agency: PM & Co (USA), 2013 (Design PM , 2014)

The comparative advertising battle between Burger King and McDonalds has been raging for years and this example from 2013 is a classic example of a subtle dig by Burger King.  The ‘golden arches’ are used as a representation of the size ‘medium’, with XXL being inserted into the Burger King logo.  Point made.  

Another example of a Burger King vs McDonalds advert (Kochanuk, 2012)

Pepsi v Coca-Cola

Agency:  Buzz In A Box (Belgium) October 2013 (Tan, 2013)

Another long running war, this time its Pepsi and Coke.  In this advert released on Halloween 2013, a Pepsi can is dressed in a Coke cape for Halloween in place of a scary witch, monster or fearsome creature.  

Another example of a Pepsi v Coke advert (Lamia, 2012)

Peterson (2014) says that comparative advertising should “aim up”, and the market leader shouldn’t attack competitors as it can be seen as bullying tactics.  That is to say, McDonalds and Coke shouldn’t retaliate as they are market leaders and it wouldn’t be fair.  Given the size of the companies involved it hardly seems like bullying and McDonalds and Coke have in the past released similar adverts against Burger King and Pepsi, respectively.  But consider if Burger King were to attack a local chain in their advertising, the public would likely be sympathetic to the smaller company.    

Comparative advertising in the US is allowed under the “Lanham Act” (1946) as the Federal Trade Commission prefers brands to be competitive with each other, rather vaguely comparative with the whole market because they believe it inspires product innovation (Peterson, 2014).  Comparative adverts must be truthful and non-deceptive” (Villafranco & Drye, 2013) and this is enforced by the National Advertising Review Board (ASRC, 2014).   

The rules generally thought to be slightly stricter and better enforced in the UK and Europe (Jones, 2014): 

The rules regarding comparative advertising in Europe are governed by the Misleading and Comparative Advertising Directive 2006 (Europa, 2014).  The Misleading and Comparative Advertising Directive 2006 requires that comparative advertising: 

“relate to goods or services which meet the same needs or are intended for the same purpose;

relate to products with the same designation of original;

deal objectively with the material, relevant, verifiable and representative features of those goods or services, which may include price; 

avoid creating confusion between traders, and should not discredit, imitate or take advantage of the trade mark or trade names of a competitor”

(Practical Law, 2012)

In the UK, the Committee of Advertising Practice (CAP) writes the Advertising Code and the Advertising Standards Authority (ASA) enforces the code and deals with advertising complaints (Committee of Advertising Practice, 2014).  The CAP Code rules on comparative advertising are very similar to the European Directive:

1.       “Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product.

2.       They must compare products meeting the same need or intended for the same purpose.

3.       They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price.

4.       They must not create confusion between the marketer and its competitors or between the marketer’s product, trade mark, trade name or other distinguishing mark and that of a competitor.”

(Committee of Advertising Practice, 2014)

To use comparative advertising advertisers must adhere to the strict codes.

So is it really worth the effort? 

Well, yes.  Research has shown that adverts using comparisons with named competitors are slightly more effective in terms of persuasion than non-comparative adverts (Millward Brown, 2009).  

But is it possible to be creative using comparative advertising, whilst staying on the good side of the ASA?

Let’s take a look at some comparative and competitive adverts in the UK, and look at the ASA’s verdicts on some of them to find out:

Come Fly With Me

Agency: Publicis

Date:  2010

This print campaign appeared on billboards and print media around the UK in 2010. 

In the advert Easyjet pokes fun of the fact that Ryanair doesn’t fly to the major airports in many cities that it flies to. 

Complaints: 1 (Ryanair)

Ryanair complained that the ad was misleading as it implied that Ryanair would fly passengers to somewhere other than they actually booked when in fact the airports are just outside the cities. 

Ruling: Upheld

The ASA agreed with Ryanair that this advert was misleading and damaging to their brand and Easyjet was forced to remove it (ASA, 2010).  

Comments:  Easyjet is the market leader low cost airline on the UK and according to Peterson (2014) the market leader should not attack challengers.  

Agency: Ryanair In-House

Date: 2010

This print advert appeared in the Telegraph and the Guardian in 2010.  The advert makes fun of Easyjet being found to be less punctual than Air Zimbabwe. The advert was picked up by many Newspapers due to the controversial nature of the image of Robert Mugabe under the title “Here’s Easyjet’s new head of punctuality”.  

Complaints: 20

The ASA stated that a major reason for the complaints was that people thought “the use of Robert Mugabe’s image in the ad was offensive, because they believed it trivialised Zimbabwes recent past and political circumstances”, along with other complaints relating to substantiating the punctuality claims.  
Ruling: Not Upheld

The ASA found that the advert was unlikely to cause widespread offence said that Ryanair had provided sufficient evidence to support the claims (ASA, 2010)

You’ve made your bed, now lie in it

Agency: Rapier

Date: 2010

Complaints: 1

Premier Inns complained that the ad was misleading because Travelodge had not substantiated their claims of how they arrived at the advertised figures and it wasn’t clear that the Travelodge prices included promotional rates. 

Ruling: Upheld

The ASA upheld all of Premier Inn’s complaints that the advert was misleading and informed Travelodge to remove all adverts and not use adverts like this in future without substantiating the claims fully (ASA, 2010).  

Agency: Publicis

Date: 2009

This advert does not name the competitor - but the green circle logo is recognisable around the world as Starbucks. 

This advert was not referred to the ASA though was picked up several marketing blogs who agreed that it was a creative piece of comparative advertising (Feld, 2009; Rudenko, 2009; Krehbiel, 2010)

Agency: Karmarama

Date: 2010

Complaints: 1

Starbucks complained to the ASA about Costa’s advert, challenging the validity of the claims and whether they were misleading as the claim related to cappucino but the small print was not displayed prominently enough for this to be clear to the reader. 

Ruling: Not Upheld

Costa was cleared by the ASA because they provided the relevant evidence to back up their claims and they also agreed that the small print could easily be read.  Costa said that they had referred to the CAP Copy Advice team prior to publication in order to prove their claims and be sure that the advert would not be banned. 

We Like Brands, We Like Aldi Too

Some of the rules have recently been relaxed regarding supermarket comparisons, meaning that own-brands can be compared against competitors premium brands – so long as the “comparable brands meet the intended purpose” (Walker Morris, 2013).   Many supermarkets such as Tesco, Asda and Sainsbury’s use a comparative strategy, however they tend to compare the weekly price of all products rather than pitting product against product.   

Aldi’s like brands is one of the more prominent comparative advertising campaigns in recent years.

Agency: McCann Manchester

Date: 2011 onwards

Aldi began their “Like Brands, Only Cheaper” campaign in 2011 and it’s still going. 

The adverts depict various characters discussing different products with a tagline along the lines of, “I like this one, I like this one too” showing a branded product and an Aldi own-brand substitute. 

The campaign has won several awards for its creative for the marketing agency (McCann Manchester, 2013; The Drum, 2012). 

However, it has not been without controversy and one of the adverts was referred to the ASA:

Complaints: 24

The complaints were about an advert which showed a woman discussing which brands of tea her husband preferred and at the end she says “I don’t like tea, I like gin” and then she drinks a sip of gin.  The complainants were about the appropriateness of the adverts being broadcast during the day, that the advert made light of alcoholism, and encouraged irresponsible drinking (ASA, 2011) but not about the comparisons with other brands. 

Ruling: Not Upheld

The ASA agreed with Aldi’s response that the ad did not glamourize drinking.

The Verdict: That’s 2 upheld complaints and 3 not upheld complaints.  So, can brands be creatively comparative without being disciplined by the ASA?   

YES! But stick to the rules and you won’t get in hot water!

References

ASA, 2010. ASA Adjudication on easyJet Airline Co Ltd. [Online]
Available at: http://www.asa.org.uk/Rulings/Adjudications/2010/3/easyJet-Airline-Co-Ltd/TF_ADJ_48184.aspx
[Accessed 12 05 2014].

ASA, 2010. ASA Adjudication on Ryanair Ltd. [Online]
Available at: http://www.asa.org.uk/Rulings/Adjudications/2010/11/Ryanair-Ltd/TF_ADJ_49393.aspx
[Accessed 20 05 2014].

ASA, 2010. ASA Adjudication on Travelodge Hotels. [Online]
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[Accessed 16 04 2014].

ASA, 2011. ASA Adjudication on Aldi Stores Ltd. [Online]
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ASRC, 2014. About the National Advertising Review Board. [Online]
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Behance, 2007. FedEx 'Pickaback'. [Online]
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[Accessed 14 04 2014].

Jones, R., 2014. Financial watchdog finds more than 100 ads of the 550 checked fail to be 'clear, fair and not misleading'. [Online]
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[Accessed 19 05 2014].

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[Accessed 25 04 2014].

Lamia, 2012. Coke Vs Pepsi: Which Ads are More Creative. [Online]
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McCann Manchester, 2013. MCCANN MANCHESTER SECURES TOP HONOURS FOR ALDI CAMPAIGN – AGAIN. [Online]
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