Legal framework for comparative advertising in the US
Comparative advertising is subject to regulation through a combination of federal, state and local laws, as well as self regulatory codes of conduct. These include:
- The Federal Trade Commission Act (FTC Act).
- Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)).
The FTC is the primary federal agency responsible for regulating public advertisements. It regulates advertising by:
- Prescribing rules under the FTC Act.
- Investigating suspected violations of the FTC Act.
- Bringing lawsuits against companies conducting illegal activity.
Legal framework under the FTC act
The FTC evaluates comparative advertising the same way it evaluates all other advertising and therefore does not require a higher standard of proof for substantiating comparative claims.
As a result, advertisements that attack, discredit or otherwise criticize another product are permissible if they are truthful and not expressly or impliedly deceptive.
The FTC considers an advertisement to be deceptive if:
- It includes a representation, omission or practice that is likely to mislead the consumer acting reasonably in the circumstances.
- The representation, omission or practice is likely to affect the consumer’s conduct or decision regarding a product or service.
- The advertiser does not possess a reasonable basis, or substantiation, for believing any representations it makes are true when the representations are made.
Although some industry codes and trade association standards discourage comparative advertising, the FTC has taken the position that industry self-regulation should not limit the use of comparative advertising, including brand comparisons, where the comparisons are clearly identified, truthful and non-deceptive, and can provide consumers with useful and important information to help them make rational purchasing decisions.
Legal framework under the Lanham act
Section 43(a) of the Lanham Act prohibits any misrepresentation of the nature, characteristics, qualities or geographic origin of the advertiser’s or another person’s goods, services or commercial
activities through the:
- Use of any:
- word;
- term;
- name;
- symbol;
- device; or
- any combination of these.
- False designation of origin.
- False or misleading description of fact.
- False or misleading representation of fact.
Under the Lanham Act, liability arises if an advertisement is either:
- Literally false. If a claim is literally false, courts may bar the claim without referring to its effect on the buying public. A court will consider a comparative advertisement to be literally false where:
- the claim is factually false; or
- the necessary implication of its claim is false, if the challenged advertisement can be interpreted in only one way.
- Literally true or ambiguous, but is likely to deceive consumers because of an implied message. Here, the plaintiff typically bears the burden of proving that the claim is both:
- false; and
- that consumers actually viewed the claim, usually by conducting a consumer survey.
About Xeno
Xeno has a particular page that aims to compare its product with other similar products.
On this page, Xeno puts all of its effort into respecting the FTC act and the LANHAM act.
In the form of an explicit table, the comparisons are clearly identified, truthful and non-deceptive. All of our comparisons are done in the most objective way possible and can provide consumers with useful and important information to help them make rational purchasing decisions.
All the data we refer to on said page has direct source links directly accessible from the comparison page itself.
Furthermore, thanks to the direct links we quote, we send web traffic to our competitors and give our visitors the ability to learn more about them.