Reading time: 3 minutes

Brands including Duracell and Energizer use comparative advertising to promote their batteries over their competitors by implying, or explicitly stating, that their product is of better quality or value. This is called comparative advertising and can be a very persuasive tool, providing customers with an ‘assessment’ of one product’s worth over another. Several brands including Coca-Cola and Pepsi use this form of advertising and clearly name or identify their competitors. Below, we explain the regulations around comparative advertising and illustrate with some examples on how to avoid breaching Australia’s Consumer Law.

Several brands including Coca-Cola and Pepsi use this form of advertising, clearly naming or identifying their competitors. Below, we explain the regulations around comparative advertising and illustrate with some examples how to avoid breaching Australia’s Consumer Law.

Comparative Advertising Regulations

Businesses need to take care when using comparative advertising so as not to mislead or deceive consumers. For example, if Duracell advertises that their batteries are cheaper than Energizer, the advertisement must clearly and accurately state the difference in price. Misstating a price difference, no matter how small, can still amount to misleading or deceptive conduct (see Luxottica Retail Australia Pty Ltd v Specsavers Pty Ltd 86 IPR 247).

The regulations focus on protecting the consumer, and not competitors from each other. For example, businesses need to take care and ensure that their comparisons are accurate. Brands cannot create a false impression in the mind of their consumers, and need to substantiate all claims by scientific or survey testing.

Comparative Advertising Conduct: Keep It Clean!

Recently, the Federal Court of Australia (FCA) in Reckitt Benckiser (Australia) Pty Ltd v Procter & Gamble Australia Pty Ltd [2015] FCA 753, looked at two companies that import and sell dishwashing tablets in Australia. 

Reckitt Benckiser imports and sells the product Finish, while Procter & Gamble imports and sells the product Fairy. The competitors agreed between themselves that Finish captured 70 percent of the dishwashing product’s market while Fairy only captured 8.5 percent. Fairy then brought some advertisements comparing its dishwashing products with those of a ‘leading brand’.

The advertisement claimed that the ‘leading brand’ tablets were unable to clean effectively without the dishes first being rinsed. It was clear that consumers interpreted the advertisement to mean that Fairy cleaned better than Finish, yet Fairy did not have any evidence of this or include any in their advertisement.

The FCA held that Finish presented a strong case that Fairy’s claims were on face value false, misleading or deceptive or were likely to mislead or deceive. The Court decided that it was then appropriate to issue an interim injunction, as Finish would likely suffer serious losses if Fairy continued with its advertisements. The Court is yet to determine whether the claims against Fairy breached the Australian Consumer Law.

Key Takeaways

Businesses can successfully employ comparative advertising to persuade consumers to buy their products over a competitor’s and can often provide consumers with accurate information about the choices available. But as has been discussed, brands need to take steps to avoid falling foul of Australia’s Consumer Law when using comparative advertising. 

Advertisers need to make sure that:

  • Their statements are accurate;
  • The comparable products are reasonably similar;
  • The comparison will be true for as long as the product is advertised;
  • The statements will be true in every location the advertisement is shown (i.e. in all of New South Wales, or in all of Australia).

Questions? Get in touch on 1300 544 755.


Redundancies and Restructuring: Understanding Your Employer Obligations

Thursday 7 July | 11:00 - 11:45am

If you plan on making a role redundant, it is crucial that you understand your employer obligations. Our free webinar will explain.
Register Now

How to Sponsor Foreign Workers For Your Tech Business

Wednesday 13 July | 11:00 - 11:45am

Need web3 talent for your tech business? Consider sponsoring workers from overseas. Join our free webinar to learn more.
Register Now

Advertising 101: Social Media, Influencers and the Law

Thursday 21 July | 11:00 - 11:45am

Learn how to promote your business on social media without breaking the law. Register for our free webinar today.
Register Now

Structuring for Certainty in Uncertain Times

Tuesday 26 July | 12:00 - 12:45pm

Learn how to structure to weather storm and ensure you can take advantage of the “green shoots” opportunities arising on the other side of a recession.
Register Now

Playing for the Prize: How to Run Trade Promotions

Thursday 28 July | 11:00 - 11:45am

Running a promotion with a prize? Your business has specific trade promotion obligations. Join our free webinar to learn more.
Register Now

Web3 Essentials: Understanding SAFT Agreements

Tuesday 2 August | 11:00 - 11:45am

Learn how SAFT Agreements can help your Web3 business when raising capital. Register today for our free webinar.
Register Now

Understanding Your Annual Franchise Update Obligations

Wednesday 3 August | 11:00 - 11:45am

Franchisors must meet annual reporting obligations each October. Understand your legal requirements by registering for our free webinar today.
Register Now

Legal Essentials for Product Manufacturers

Thursday 11 August | 11:00 - 11:45am

As a product manufacturer, do you know your legal obligations if there is a product recall? Join our free webinar to learn more.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Innovation Award 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Award 2020 Employer of Choice Winner – Australasian Lawyer
  • 2020 Financial Times Award 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year Award 2021 Law Firm of the Year - Australasian Law Awards
  • 2022 Law Firm of the Year Winner 2022 Law Firm of the Year - Australasian Law Awards