Comparative Advertising: When Is A Comparable Product Not A Comparable Product?

Author:Mr Michael Gardner
Profession:Wedlake Bell
 
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Sainsbury's fail again to overturn Tesco ruling by the ASA

The supermarket retailer Sainsbury's has failed in its latest bid to overturn the result of an adjudication by the Advertising Standards Authority (ASA) which gave a clean bill of health to rival supermarket Tesco's "Price Promise" advertising g campaign (Sainsbury's Supermarkets Ltd, R(on the application of) v The Independent Reviewer of Advertising Standards Authority Adjudications [2014] EWHC 3680 (Admin)).

The ASA's original ruling in July 2013 had been challenged by Sainsbury's who took the matter to the Independent Reviewer (IR) of ASA adjudications. When he held that there were no substantial flaws in the ASA's adjudication that merited any change to it, Sainsbury's sought a judicial review by the High Court of the IR's decision

Background

In March 2013, Sainsbury's complained to the ASA in about its rival's "Price Promise" comparative advertising campaign which compared the prices of certain comparable food products on sale at Tesco and Sainsbury's. In their complaint, Sainsbury's argued that in making the comparisons between various products, Tesco had not taken into account so-called "non-price" elements such as product quality, sustainability and ethical matters. Products which had certain accreditations or which were produced according to specific ethical or environmental standards, Sainsbury's contended, were bound to be more expensive than products which did not have some or all of these features. As a result, so Sainsbury's claimed, the comparisons that Tesco made were unfair and misleading because these important elements were not taken into account in the price comparisons. For example, Tesco had compared the price of its Haddock Fillets to those of Sainsbury's Haddock Fillets. But whereas Sainsbury's claimed their products were Marine Stewardship Council (MSC) accredited, Tesco's weren't (although they were sourced from the same MSC recognised farm as the Sainsbury's product). Thus, Sainsbury's argued, Tesco were not comparing "like with like". Similarly, Tesco had compared the price of its "Everyday Value" teabags to Sainsbury's "Basics" Fairtrade teabags. This too was unfair in Sainsbury's view because the Sainsbury's products were "Fairtrade" and Tesco's were not. Therefore, by failing to take account of the fact that Sainsbury's products were differentiated from Tesco's in a "non-price" way, Sainsbury's alleged that the price comparisons did not meet the...

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