Apples To Oranges Comparative Advertising

By: Cassels Brock

Provided by World Services Group


Apples To Oranges Comparative Advertising

   Published May 22, 2004 - Ontario, Canada

In a recent Australian case, the Federal Court of Australia refused to subject a comparative television advertisement to a level of scrutiny any different than that applied to an ordinary advertisement.

Duracell ran a television commercial that consisted of a cartoon story about bunnies in a race, which was won by a bunny powered by a Duracell battery. The race took place over a rugged and arid landscape. One bunny was powered by a Duracell battery with the brand name visible on its back. The other bunny was powered by a black battery with no brand name on it. After the start of the race the Duracell bunny is always in front. On two occasions the exhausted non-Duracell bunny is replaced by a similar runner who emerges from a hiding place along the track.

The voice-over at the end of the commercial says, “While Duracell Alkaline keeps on running, Eveready Super Heavy Duty can’t keep up… with up to three times more power Duracell always beats Eveready Super Heavy Duty.” A superscript stated “Eveready Super Heavy Duty is a cheaper non-alkaline battery.”

In Australia the Eveready Super Heavy Duty battery is considerably cheaper than the Duracell alkaline battery. Duracell’s alkaline battery relies on superior technology to that of the carbon zinc Eveready battery and lasts longer because of this. Eveready sells both alkaline and carbon zinc batteries. While the Energizer battery is the highest selling carbon zinc battery in Australia, it is only the fifth most powerful in Energizer’s product range.

The judge who initially heard the case found that Duracell had engaged in misleading advertising. He said that the advertisement was misleading because of the omission of any reference to Energizer’s alkaline batteries, which have performance characteristics similar to Duracell’s alkaline batteries.

On appeal the court was convinced that viewers of the commercial would understand that the comparison was being made between the Duracell alkaline battery and the Eveready Super Heavy Duty battery since reference was made to this specific Eveready battery three times in the audio and in the superscript.

The commercial did not make any representations concerning the respective brands of the parties or the products which made up their respective product lines. It did no more than represent in graphic terms the power difference between two specified batteries which were in direct competition in the marketplace. In the absence of a representation that the Eveready Super Heavy Duty battery is the only competitive Eveready product, the court concluded that it was not necessary to make disclosure or reference to other competitive alkaline products.

The court was not prepared to accept that as a general proposition comparative advertising should be subjected to increased scrutiny over that given to regular advertising. Comparative advertising, when truthful and non-deceptive, is a source of important information to consumers and assists them in making rational purchase decisions. It encourages product improvement and innovation and can lead to lower prices in the marketplace.

In response to the argument that comparative advertising should be restricted to similar products, the court stated that so long as the factual assertions contained in the advertisement were true and not misleading half-truths, an advertiser could lawfully compare a particular aspect of its product or service with the same aspect of a competitor’s product or service. The advertiser was not obliged to provide information concerning other factors that might influence consumers choosing between the two products. A consumer, having been informed that the Duracell product lasted up to three times longer than the Eveready Super Heavy Duty battery, can make his or her own decision at the point of sale as to whether the extra power of the Duracell product is worth the higher price.

The wording of the Canadian Competition Act is similar to the legislation in Australia and it is quite possible that the same result would be arrived at by a Canadian court.

This article is provided for information purposes only and does not constitute legal advice. ©John McKeown 2004

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