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Comparative Advertising and Non Identical Food Products

The European Court of Justice (ECJ) has ruled that a retailer’s use of comparative advertising to highlight price differences between its goods and those of its competitor may not in certain cases, be misleading where such goods are not identical for the purpose of such a comparison. 

In Lidl SNC v Vierzon Distribution SA, the ECJ noted that the Comparative Advertising Directive listed various conditions that comparative advertising must satisfy so as not to fall foul of the law.  The ECJ noted in particular the following conditions:

  • It must not be misleading
  • It must compare goods meeting the same needs or intended for the same purpose
  • It must be objective in its comparison

Lidl objected to an advert which was placed in a French newspaper by its competitor Vierzon. The advert reproduced till receipts listing 34 goods purchased from the two respective supermarkets.  The till receipts included a general description of the goods and, where appropriate, weights or quantities. The advert suggested that customers would make a saving by purchasing such goods from Vierzon rather than from Lidl.

Lidl argued that the goods were not comparable because there were qualitative and quantitative differences between the goods which meant they would not meet the same needs.  Vierzon disagreed with this argument, claiming that two goods which are not the same may be compared, provided they are sufficiently interchangeable.

It was decided by the ECJ that the fact that one food product has a different source/origin or different ingredients from the other product to which it is being compared does not prevent it from potentially meeting the same needs.  The ECJ stated that it was necessary to undertake a specific assessment of the products in question in order to determine if a sufficient degree of interchangeability existed.  The ECJ referred the matter to the national court in order to assess the specific goods and determine whether the goods met the same needs.

For further information please contact Leo Moore or Marie McGinley of our Technology Group.