The applesauce comparison with a 'random' A-brand
A video produced by Servero, an apple sauce producer, was posted on YouTube. A presenter asks passersby to take part in a taste test. Sample A is Servero’s 100% apple sauce without added sugar. Sample B is a ‘random’ leading brand with a purple lid that contains ‘no less than seven cubes of sugar’. Eight of the ten participants preferred the Servero 100% apple sauce. According to competitor HAK, it is abundantly clear that Sample B is its own HAK apple sauce. Moreover, the information in the advertisement is incorrect. This apple sauce has not been produced for some time and will soon disappear from the market. HAK also markets a 0% sugar version and a version that only contains 4 grams of added sugar per 100 grams. Servero knows this, because both companies are parties to the Product Composition Improvement Agreement (Akkoord Verbetering Productsamenstelling). That agreement stipulates that all manufacturers will reduce the amount of sugar to a maximum of 4 grams, and that the old versions will have to be replaced by November 2018. HAK believes that Servero is cheating by comparing its product to a HAK product it knew very well was being phased out.
The Advertising Code Committee concurred with HAK. Comparative advertising must meet the stringent requirements of Article 13 of the Dutch Advertising Code. Among other things, such advertisements may not be misleading. Servero knows that the HAK product will soon be phased out, but compares its apple sauce to the old HAK product without any further explanation. Without this explanation, consumers may be led to believe that the comparison is correct and current, and that it will also apply to the new HAK products. Servero should therefore have informed consumers that the comparison was only valid for a short period of time. Because it failed to do so, the advertising was misleading and an example of unlawful comparative advertising.
Comparative advertising is permitted, but it must meet stringent requirements. This shows that no essential information may be withheld from consumers that could influence their purchasing decision. A completely up-to-date and accurate comparison remains the key to success.
Dominique Geerts