“Aldi Stores Ireland Ltd v. Dunnes Stores”

• 1. The question of whether there has been a breach of the 2006 Directive and the 2007 Regulations, and, in particular, the potentially more difficult question of whether any comparative advertisement is misleading, should be approached on the basis that the courts recognise that advertising is, by its nature, meant to present a product in its most attractive light in order to highlight features that are seen as potentially attractive to consumers, and, furthermore, that most transactions are carried out without minute or microscopic examination, weighing, assessment, or analysis. The test for misleading advertising involves the idea that the consumer is somehow deceived, either positively or by omission. Once it is established that the product satisfies Regulations 4(2)(c) and (d), and once the advertising is viewed and the products placed side by side to identify their respective constituents, it should normally be readily apparent whether consumers would consider themselves deceived into buying one of them, either by the terms of the advertising itself, or by some omission from it. In the case of products which have acknowledged differences, this would involve a consideration of whether the products are comparable, and when objectively compared in at least one respect (normally price), the comparison is misleading in the sense that there is a false implication of equivalence of other features of the product, which, moreover, operates in a way which deceives the customer and may significantly affect their decision to purchase.

• 2. An analysis of the differences between products in terms of their composition and ingredients is irrelevant to the question whether the advertisement satisfies Regulation 4(2)(d) of the 2007 Regulations. All that is required under Regulation 4(2)(d) is the comparison of one material, relevant, verifiable, and representative feature of the goods, and that the comparison be objective. This poses little difficulty if the relevant comparison sought to be made is on price which is sufficient to satisfy the requirements of Regulation 4(2)(d) of the 2007 Regulations.

• 3. Products are not comparable for the purposes of Regulation 4(2)(c) of the 2007 Regulations if the differences in the products mean that they do not meet the same needs or were not intended for the same purpose.

• 4. The objective difference between the products may nevertheless mean that the advertising is misleading, and thus does not come within Regulation 4(2)(b) of the 2007 Regulations. This is even more difficult if the misleading nature of the advertisement is said to arise by omission.

  • a. In judging whether comparative advertising is misleading, it is necessary to have regard to the benchmark set by the Unfair Commercial Practices Directive, which speaks of the consumer being deceived. A practice will be misleading by omission if it omits material information the average consumer needs, in the context, to take an informed transactional decision and thereby is likely to cause the average consumer to take transactional decisions he or she would not otherwise have taken.

  • b. To assess this, it is not sufficient to identify objective distinctions and differences between the products compared and then ask the question whether the hypothetical consumer’s decision may have been influenced if he or she had known about this difference in the product. Advertisement concerns, by definition, the selection of some features of a product thought likely to attract consumers, and is not inherently misleading because it does not recite other features. In that context, any piece of truthful information about a product if given to a consumer may affect a consumer’s decision, but that is very far from a finding that an advertisement deceives the consumer if it omits of that information from an advertisement.

• 5. Within the field of comparative advertising, an advertisement may be misleading where it falsifies or undermines the implicit comparison made, and the implicit equivalence asserted, notwithstanding the fact that the products are compared in the advertisement by reference to one or more objective features of the products, thus satisfying Regulation 4(2)(d)), and they are broadly targeted at the same need or purpose and so comply with Regulation 4(2)(c).