(a) Introduction. The Commission's staff has conducted an investigation of industry trade associations and the advertising media regarding their comparative advertising policies. In the course of this investigation, numerous industry codes, statements of policy, interpretations and standards were examined. Many of the industry codes and standards contain language that could be interpreted as discouraging the use of comparative advertising. This Policy Statement enunciates the Commission's position that industry self-regulation should not restrain the use by advertisers of truthful comparative advertising.
(b) Policy Statement. The Federal Trade Commission has determined that it would be of benefit to advertisers, advertising agencies, broadcasters, and self-regulation entities to restate its current policy concerning comparative advertising.
1 Commission policy in the area of comparative advertising encourages the naming of, or reference to competitiors, but requires clarity, and, if necessary, disclosure to avoid deception of the consumer. Additionally, the use of truthful comparative advertising should not be restrained by broadcasters or self-regulation entities.
1 For purposes of this Policy Statement, comparative advertising is defined as advertising that compares alternative brands on objectively measurable attributes or price, and identifies the alternative brand by name, illustration or other distinctive information.
(c) The Commission has supported the use of brand comparisions where the bases of comparision are clearly identified. Comparative advertising, when truthful and nondeceptive, is a source of important information to consumers and assists them in making rational purchase decisions. Comparative advertising encourages product improvement and innovation, and can lead to lower prices in the marketplace. For these reasons, the Commission will continue to scrutinize carefully restraints upon its use.
(1) Disparagement. Some industry codes which prohibit practices such as “disparagement,” “disparagement of competitors,” “improper disparagement,” “unfairly attaching,” “discrediting,” may operate as a restriction on comparative advertising. The Commission has previously held that disparaging advertising is permissible so long as it is truthful and not deceptive. In Carter Products, Inc., 60 F.T.C. 782, modified, 323 F.2d 523 (5th Cir. 1963), the Commission narrowed an order recommended by the hearing examiner which would have prohibited respondents from disparaging competing products through the use of false or misleading pictures, depictions, or demonstrations, “or otherwise” disparaging such products. In explaining why it eliminated “or otherwise” from the final order, the Commission observed that the phrase would have prevented:
respondents from making truthful and non-deceptive statements that a product has certain desirable properties or qualities which a competing product or products do not possess. Such a comparison may have the effect of disparaging the competing product, but we know of no rule of law which prevents a seller from honestly informing the public of the advantages of its products as opposed to those of competing products. 60 F.T.C. at 796.
Industry codes which restrain comparative advertising in this manner are subject to challenge by the Federal Trade Commission.
(2) Substantiation. On occasion, a higher standard of substantiation by advertisers using comparative advertising has been required by self-regulation entities. The Commission evaluates comparative advertising in the same manner as it evaluates all other advertising techniques. The ultimate question is whether or not the advertising has a tendency or capacity to be false or deceptive. This is a factual issue to be determined on a case-by-case basis. However, industry codes and interpretations that impose a higher standard of substantiation for comparative claims than for unilateral claims are inappropriate and should be revised.
(Sec. 5, 38 Stat. 719, as amended; 15 U.S.C. 45)
[44 FR 47328, Aug. 13, 1979]
Notes of Decisions
Deere & Co. v. Mtd Prods., Inc., Cross-Appellee, 41 F.3d 39 (2d Cir. 1994).
“” FTC Policy Statement on Comparative Advertising, 16 C.F.R. § 14.15 n. 1 (1993). In view of this, the District Court’s finding of a likelihood of dilution was entirely appropriate, notwithstanding the fact that MTD’s humorous depiction of the deer occurred in the context of a…”
Buying for the Home, LLC v. Humble Abode, LLC, 459 F. Supp. 2d 310 (D.N.J. 2006).
“16 C.F.R. § 14.15 (c). In the context of a trademark infringement claim, the comparative advertising defense raised by Buying falls under the umbrella of “nominative fair use.”
Wells Fargo & Co. v. WhenU. Com, Inc., 293 F. Supp. 2d 734 (E.D. Mich. 2003).
“, In Regard to *773 Comparative Advertising, 16 C.F.R. § 14.15 (c) (2003). 25 The Court concludes that, based on the evidence presented, a preliminary injunction will cause significant harm to defendant, defendant’s clients and users, and the general public.”
Licata & Co. Inc. v. Goldberg, 812 F. Supp. 403 (S.D.N.Y. 1993).
“565 (Winter 1987); 16 CFR § 14.15 . 3 . Commercial advertising can, of course, be regulated to the extent necessary to protect the public but is entitled to recognition as important to First Amendment values.”
Cumberland Packing Corp. v. Monsanto Co., 32 F. Supp. 2d 561 (E.D.N.Y 1999).
“Plaintiff points out that the Sweet’N Low trademark on the Sweetmate box appears in a larger font than any other word on the package except for the Sweetmate mark itself.”
W. Union Fin. Servs., Inc. v. First Data Corp., 93 Cal. Daily Op. Serv. 9257 (Cal. Ct. App. 1993).
“13 , quoting the Federal Trade Commission, 16 C.F.R. § 14.15 (c) (1980) [“Comparative advertising, when truthful and nondeceptive, is a source of important information to consumers and assists them in making rational purchase decisions.”
Forest River, Inc. v. Heartland Recreational Vehs., LLC, 753 F. Supp. 2d 753 (N.D. Ind. 2010).
“at 1027 (quoting 16 C.F.R. § 14.15 (c) (1980)). The Sony court concluded that the defendant’s comparative advertising using screen shots of the plaintiffs video games to show the look of video games’ graphics on a television when played on a console as compared to how they look…”
SATA GmbH & Co. KG v. Cent. Purchasing, LLC (C.D. Cal. 2021).
“4 16 C.F.R. § 14.15 5 Notably, the regulation does not preclude prohibitions on 6 comparative advertising, or even suggest that all comparative 7 advertising is pro-competitive.”
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