Comparative Advertising in Today’s Marketplace: Whatever Happened to “Brand X?”
By: JOHN C. PICKERILL
Remember when all advertised product comparisons had to be made against an unnamed “Brand X?” After much lobbying from the advertising industry, the Federal Trade Commission finally agreed that naming competitive brands in comparative advertising was a good thing because it provided consumers with valuable product information and led to more robust marketplace competition.
However, this heightened freedom came with increased responsibility for the advertiser. The FTC has established rules for the types of comparisons which can be made in advertisements to ensure consumers are not being misled by the comparison of dissimilar products or irrelevant product features. Also, advertisers have been held to a heightened duty of substantiation whenever advertised claims involve competing products.
My favorite comparative advertising case is U-Haul v. Jartran, Inc., in which Jartran entered the trailer rental market with an aggressive strategy of taking U-Haul, the market leader, head-on. Jartran ran an ad campaign which stated its trailers were the only products “designed for the times” and that its prices beat U-Haul’s prices nationwide. Unfortunately, these statements weren’t altogether true. As a result, a court found for U-Haul, fined the advertising agency, and required Jartran to run corrective advertising to set the record straight. Jartran subsequently filed for bankruptcy, and I’m guessing the agency was longing for the good ole days of “Brand X.”
The Jartran case should serve as a cautionary reminder of the perils and privileges of comparative advertising. Taking on competitors can be good for business, but you have to make sure your claims are completely true and completely relevant. Your competitors are certain to look for any excuse to come after you.