According to Adage more companies are calling out their competitors in "attack ads." Recent campaigns cited by the article include Domino's claims that it beat Subway in a taste test, Campbell Soup's campaign touting the superiority of its Select Harvest soup over General Mills' Progresso, Dunkin' Donuts boasting that it "beat Starbucks," and recent ads from Kraft asserting that its Oscar Mayer Jumbo Beef Franks taste better than hot dogs from Sara Lee and others. The article notes the success of these ads but cautions that competitors are countering with increasingly aggressive responses, including litigation challenging ads they perceive as unfair or damaging to their product or reputation. This latter point makes sense -- the more direct and aggressive an ad -- the more likely a competitor will be to challenge it. Therefore, I recommend advertisers focus on claim interpretation and substantiation when considering comparative ads.
With respect to claim interpretation, an advertiser should consider all messages -- express and implied -- that both a reasonable consumer and an irate competitor might take from the ad. A fundamental principle of advertising law is that the advertiser is responsible for all messages that a reasonable consumer would take from an ad, including claims that are unintended. This is why it is important to review all ads from the perspective of a reasonable consumer. Prior to making a comparative claim, however, I suggest also considering the ad from the standpoint of a competitor and analyze the implied messages a competitor who wants to stop your campaign might assert are made by the ad. Engaging in this exercise may allow you to tweak the ad to "front-off" a potential challenge, develop substantiation for claims you had not considered previously, or run the ad as planned with a better understanding of what a potential challenge might allege.
A second principle of advertising law is that the advertiser must have substantiation for all messages a reasonable consumer would take from the ad. The level of substantiation required varies depending on the claim. If an ad claims a particular level of substantiation such as “a taste test” proves, then the advertiser must have data from such a test. If the ad does not claim a particular level of substantiation, the advertiser must have an “appropriate” level of substantiation, based upon a number of factors, including the claim made, the product or service involved, the consumers’ ability to evaluate the product for themselves, and the potential harm to consumers of a false claim.
Most comparative ads make "establishment claims" -- they refer to the results of a test, for example a taste test or performance test, to establish the truth of the statement. Therefore, the advertiser should make certain that the tests used were reliable, properly conducted, correctly interpreted, tested the appropriate product features, and that the data support the claim. Often advertisers conduct tests, but the tests are unreliable or do not measure the attribute that is the basis of the claim, or do not measure a sufficient number of competing products to support the claim.
Claim interpretation and substantiation will decide which party prevails in a false advertising lawsuit, especially when comparative claims are involved.
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