You arrive at work at 09:00. You check your email and pick up the latest edition of the industry magazine you get every month. On the front page sits an advert from your closest competitor that claims their latest product can offer something yours cannot. Worse still – you know what they are claiming isn’t possible. What do you do asks Simon Keeping, UK MD of Kärcher.
The immediate reaction is to consider a legal approach based on the principle of unfair competition. This is where things start to get tricky. English law doesn’t provide for civil law proceedings against misleading advertising in these circumstances and leaves the enforcement of advertising standards to the regulatory authorities.
These authorities are not bound by law to investigate unless they perceive there to have been a regulatory breach. So the decision can be open to their interpretation depending on their review of the initial complaint. This is unusual. In most European countries lawsuits can be filed on the basis of unfair competition – providing a clear route to redressing grievances and offering disincentives for companies that might try to push the boundaries of truth in their marketing.
Arguably, the situation in the UK does not do enough to deter companies from engaging in potentially misleading advertising, as under the current system advertisers know that lawsuits will not be forthcoming. The current dispute between professional cleaning manufacturers Kärcher and Tenant is a case in point. Kärcher claims Tennant’s advertising falsely states that products based on its ec-H20 technology can do something scientifically impossible.
In fact, independent scientific reports advise that the laws of physics won’t allow it. In Germany and Belgium Kärcher has filed lawsuits against Tenant in response. In the UK – it can’t – and has had to approach to Advertising Standards Authority (ASA) instead to seek action.
Whilst the ASA has now confirmed it will investigate Tennant’s advertising it does beg the question, how many don’t get this response and are left with no redress?
The legal loophole on false advertising puts manufacturers in a challenging position, as clearly legal proceedings are a very unlikely option when faced with unfair marketing of competitors’ products. Therefore, this raises the question, should the UK follow other European countries and give consumers and manufacturers the power to directly seek legal redress against misleading advertising claims, rather than leaving them entirely at the mercy of the regulators?