One big difference between the US and the EU in comparative advertising is that what we would consider negative puffery, like “overpriced,” the EU bans as not sufficiently objective. In this ASA adjudication, the advertiser both ran a review site that looked too much like it was independent, despite a footer at the bottom of every page, and also slagged off the competition in ways the ASA concluded were not allowed:
We considered that, as reviews of competitors’ products on a site operated by Pandle, the content of those reviews were part of a marketing communication for Pandle and were therefore subject to the requirements of the CAP Code, which stated that comparisons with identifiable competitors must not be likely to mislead about either the advertised or competing product. The review of Crunch commented on a number of features of the product, including speed, reporting and price. We did not consider that it made clear the basis was for the various claims made for those features such as the speed being “slow”, the reporting capabilities as “small” and the price as “high” and the product as “overpriced” and that it was not obvious from the context. We considered that the subjective nature of the terms and language used meant their meaning was ambiguous, and that they were therefore likely to mislead traders about the features and price of the Crunch software. The Code also stated that comparative ads must objectively compare one or more material, relevant, verifiable and representative feature of those products. The review of Crunch included subjective language such as “overpriced”, “A bookkeeper or other professional would not use this software for their clients, as they would probably lose money with the time it takes!”, “The pricing is high”, “we remain sceptical as to whether it’s just a novelty or does genuinely save time” and “overpriced compared to other options available” (as well as more positive comments such as “the software looks pleasing to the eye”). We considered that, in the context in which they appeared, those claims were neither objective nor capable of verification … and therefore concluded that the ad breached the Code.