New row over comparative adverts looms

Date: 25/04/1996

By Fiona McHugh

A NEW episode in the never-ending saga over proposed EU-wide laws on comparative advertising is about to begin.

MEPs are getting ready to examine for the second time whether and when companies should be allowed to make comparisons between their products and those manufactured by rival companies.

And, given the fact that the draft proposal due to return to the European Parliament in the coming weeks looks radically different from the one which left there in 1992, many in the advertising industry expect lengthy wrangles between MEPs and ministers before the proposal finally becomes law.

“There is a lot of ground between the Parliament's position and that of the Council of Ministers. I am sure this will turn into yet another long-running tussle over this directive,” said Lionel Stanbrook of the UK-based Advertising Association.

“The Parliament, after all, passed a number of tough amendments during the first reading which have since fallen by the wayside.”

The issue of whether comparative advertising should be allowed in the Union has long been the subject of heated debate between member states.

Germany, France, Belgium and Luxembourg, where comparative publicity is effectively banned, fiercely opposed any relaxation of their national laws. Most other countries, arguing that the bloc's patchwork of rules impedes pan-European advertising campaigns, have fought hard for a liberal EU-wide approach.

Under the proposal to be considered by MEPs, comparative advertisements would be allowed, but only if they were not misleading and did not liken products with established trade marks. Ford, Fiat or Rolls Royce could not, for example, run advertisements claiming their cars were as good as, or better than, BMWs.

The proposed rules also state that the bans on, for example, advertisements for tobacco, toys or doctors and lawyers which exist in certain member states should not be undermined by comparative advertising.

In the end, the draft directive squeezed through the Council of Ministers by qualified majority after France, Belgium and Luxembourg dropped their opposition to the text. They were appeased by a clause, included at the last minute, stating that comparative advertisements could only compare products from the same region.

That would, for example, rule out any comparisons between British and French champagne.

Germany, however, maintained its firm opposition to the proposal, dashing hopes that it would be won over by the decision to ban comparisons between products with established trade marks.

“We had hoped that by including that clause we would satisfy Germany. They could not bear the idea of Hondas or Fiats being compared to BMWs or Mercedes,” explained a Spanish diplomat.

Finland and the Netherlands also opposed the directive, but on the grounds that it was not liberal enough. However, the three could not muster enough votes to block the plan.

Michel Deurinck of the European Advertising Tripartite said his organisation was in favour of strict conditions, although some advertising agencies fear that restrictions would curb their artistic freedom.

Broadly speaking, companies with leading brands, such as Coca Cola or McDonalds, are opposed to comparative advertising, while those whose brands are trying to catch up, such as Pepsi or Burger King, are usually in favour.

Consumer groups also look kindly on comparative advertisements because they often point out differences in the prices of similar products, making it easier for consumers to choose between brands.

Even if the draft directive now on the table manages to get past MEPs relatively unscathed, many in the advertising business fear it will be narrowly interpreted by reluctant member states.

“The Germans would probably be so restrictive in their interpretation of the directive as to effectively leave things as they are,” said Oliver Gray of the European Advertising Standards Alliance.

The directive is a so-called 'maximum' directive, which means that member states would not be allowed to impose tougher national laws.