In examining the container image claim, the Panel noted the Code’s provisions that the interpretation of an impugned advertisement and assessing the truthfulness and accuracy of a claim must be made using a test of “general impression”, taking the ad as a whole. The Panel determined that none of the advertising in issue implied a precise comparison between the containers shown. Rather, in the Panel’s view, the general impression implied a comparison by volume as expressed in the text claim, with which the image always appeared. There was no consumer research presented to the Panel indicating that consumers take away of the message was that a single container of the advertised product was equal to the multiplier number of the larger size of the compared product. The Panel concluded that there was no Code violation for use of the image claim.

There appeared to be agreement between the parties as to the intent and meaning of the advertising in terms of the intended comparison. The majority of the Panel felt that a disclaimer was necessary in order to be clear that the point of comparison was not the stronger variant of the complainant’s product. The Panel noted that the disclaimer must be legible and that based on the images presented, the disclaimer on the larger execution of the in-store signage did not appear to be legible. The Panel required that the disclaimer be made more legible within three months. In terms of the language of the disclaimer, the Panel did not agree that a reference to ‘value brand’ was unfairly disparaging or misleading. The Panel was of the view that the words implied a lower price point than the stronger product.

The complainant argued that the general impression of the campaign disseminated, in tone and content, negative sentiments about the complainant’s products.  It asserted that the use of the fictional character was denigrating to the complainant’s products and industry, and also extended further as to be denigrating to unemployed individuals more broadly. While acknowledging the allowance for the use of humour in ads generally, the complainant’s position was that the campaign went too far by mocking and promoting a negative connotation of the complainant’s product, including innuendo regarding the quality and safety of such product.

The complainant took issue with a line of copy in the campaign that suggested that the individuals in an ad stopped using the complainant’s products, which in the complainant’s view, conveyed that continued use of the complainant’s products would have a negative impact.

The complainant also took the position that describing the advertiser’s product by focusing on the absence of something intrinsic to the complainant’s product was done in a manner that created an unfair negative direct comparison.

Further, the complainant argued that the parity claims were inadequately substantiated in contravention of Clause 1(e) of the Code.

The complainant submitted four negative reviews of the advertiser’s product from the advertiser’s own website to support its argument that consumers did not agree with the parity claims. In addition, the advertiser’s product was described as a ‘substitute’ to the complainant’s products, yet the products differed in some important ways and were therefore not equivalent as the complainant argued was implied by language related to ‘substitution’.

The advertiser explained that the use of the fictional character appearing sad was by virtue of the fact that the people depicted in the advertisements chose the advertiser’s product over the complainant’s product, and was used as a tool to mitigate confusion in terms of what differentiated the advertiser product from the complainant’s product. The advertiser also argued that highlighting the difference between the two products was a means of providing valuable information to consumers.

In support of the veracity of its parity claims, the advertiser submitted portions of its research as substantiation. The research was conducted by a third-party research institution and, the advertiser asserted that it was conducted in compliance with Ad Standards’ Guidelines for the Use of Comparative Advertising / Guidelines for the Use of Research and Survey Data to Support Comparative Advertising Claims. The claims were supported with at least 85% of the respondents in agreement with the claims made, including that level of agreement by users of the complainant’s product. The advertiser also argued that the consumer reviews referenced in the complaint were cherry-picked from the website.

The Panel determined that the campaign tagline which highlighted a fundamental difference between the two products while at the same time claiming parity in one of the elements of the products, did not imply, directly or indirectly, a negative inference related to the quality or safety of the complainant’s product. Similarly, words such as ‘replace’ or ‘substitute’ did not connote superiority or even equivalency on all product characteristics.

The Panel also held that there was no support for the assertion that the campaign was demeaning or denigrating to the complainant’s product, or its business sector under Clause 14(c).  Rather the tagline and campaign offered the advertiser’s product as a substitute for the complainant’s product based on the element that was claimed to be at parity, and focused on an important distinction between the products that would be relevant to some consumers. The Panel was of the view that the reference to the absence of something intrinsic to the complainant’s product was not unfairly disparaging under Clause 6, but rather provided factual and important information to consumers.

The use of the fictional character who appeared sad and dejected because of its unemployment was determined by the Panel to be humourous in tone and not demeaning or degrading to the complainant, its business sector or unemployed individuals more broadly.  While it may have been in poor taste to laugh at the expense of the unemployed character, that itself is not sufficient to amount to a violation of Clause 14(c) of the Code. Having said that, the Panel did not agree with the assertion of the advertiser that the fictional character was a tool to avoid product confusion by adding clarity of the fact that the advertiser’s product differed from the complainant’s product.

When assessing specific advertisements within the campaign, the Panel considered the captions that accompanied posts either on social media or streaming platforms as being part of the advertisements at issue.

With respect to the specific claim raised related to the advertisement where an individual stated that they stopped using the complainant’s product, the Panel held that the general impression of this statement was that it was reflective of a choice and not a negative judgement on those that do not stop using the complainant’s products. That advertisement was determined not to contravene Clause 6 or 14(c) of the Code.

Conversely, there was a line used in the campaign which referenced the use of the advertiser’s product as being ‘the right choice’. The Panel unanimously held that this statement implied that use of the complainant’s product was a ‘wrong’ choice, and was unfairly demeaning and disparaging to the complainant’s product in contravention of Clause 6 of the Code.

The Panel considered the evidence submitted by the advertiser to support its parity claims. The Panel noted that while the Ad Standards’ Guidelines for the Use of Comparative Advertising / Guidelines for the Use of Research and Survey Data to Support Comparative Advertising Claims recommend a 95% confidence level, that requirement relates to the replicability of the study results and not the level of consumer support for a specific claim. The Panel noted that the methodology used by the advertiser conformed with the Ad Standards’ guidance and was rigourous by virtue of the tests having been conducted by an independent professional body. As a result, the evidence was held to be reasonably competent and reliable as required under Clause 1(e) of the Code.

The Panel determined that the 85% agreement level with the parity claims was considered to be a significant majority and strong substantiation for the claims made throughout the campaign. The negative reviews submitted by the complainant were not sufficient to alter this evidence.

In assessing certain of the defendant advertiser’s performance superiority claims, third party websites were referenced as substantiation. Those websites were found by the Panel to be legitimate and based on objective criteria. The Panel considered Ad Standards’ Guidelines for the Use of Research and Survey Data to Support Comparative Advertising Claims, which states, “Research to support a specific comparative claim against another product or service should follow published standards of the market research industry, or generally accepted industry practices.” The complainant advertiser in this case did not demonstrate that the defendant advertiser’s rating methodology was misleading.

The Panel found that where disclaimers containing information about the assessment criteria are displayed in a reasonably prominent and easy-to-understand manner, the advertising complies with the Code.

The Panel found that claims of being the “favourite” were not supported by competent and reliable evidence showing the product/service to be the most popular or best-selling. As a result, the Panel found that these claims were not adequately substantiated.

Concerning yet other superiority claims, the defendant advertiser asserted that the claims were mere puffery. The Panel noted that scope of puffery is limited in Canada, and that claims relating to “best” and “most affordable” required substantiation which was not provided in this case.

In considering the five-star rating claims, the majority of the Panel echoed the 2019 Advertising Dispute Case Summery #2 which states in relevant part:

The perfect star rating used in the advertising reflected the “rounding up” practices of the advertiser’s website service provider, and was repeated in advertising across various media. The Panel found that this resulted in misleading visual representations, and that the advertiser has the responsibility to ensure that all of its claims are accurate and not misleading, regardless of the practices of its providers. According to the Panel, an advertiser cannot visually depict an unqualified perfect star rating if not all ratings are perfect.

This was distinguished by the Panel from stating the number of five-star ratings received, which may be acceptable under the Code, if true.

For the reasons above, the Panel found that elements of the advertising contravened both Clause 1 (a) and (e) of the Code. In addition, the Panel found that making superiority claims without sufficient support unfairly discredited the complainant advertiser and resulted in the exaggeration of competitive differences between the two brands, contrary to Clause 6 of the Code.

The Panel found that the testing submitted in support of the performance claims by the defendant advertiser did not replicate consumer use, and was not sufficient in this instance to support the claim as it would be understood by consumers. The Panel concluded that disclaimers were insufficient in the advertising to correct an otherwise false or misleading general impression about the nature and point of reference of the comparison.

The Panel further concluded that the factor of claimed superior effectiveness (e.g. 2x more) did not match the general impression of the claim as presented in the advertisement. In the Panel’s view, and without consumer perception data to the contrary, a claim like ‘2x more’ means the advertiser has the same base amount as the comparator product, plus the stated multiplier. This is different from the claim ‘twice as much’.

Finally, the Panel considered the dramatization. The Panel noted that the product was not shown in use. Instead, the Panel determined that the depiction was whimsical and fantastical, and not intended to demonstrate the efficacy of the product. This dramatization therefore did not violate the Code in the Panel’s assessment.

For the reasons above, the Panel found that the claims contravened Clause 1 (a), (c), (d) and (e) of the Code. The Panel unanimously found that, although the claims violated Clause 1, the advertising did not violate Clause 6 in this instance. The advertisements made otherwise valid points of distinction and did not unfairly discredit the competitor’s product.