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.

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.