The Content Code adopted by the Communications and Multimedia Content Forum (CMCF) of Malaysia sets out best practices for online standards and broadcast content.
The CMCF’s Complaints Bureau was established to receive complaints by industry players for breaches of the Code. The Bureau is also empowered to mediate, adjudicate and rule on such disputes.
In September, the Bureau delivered rendered its first decision following a complaint from the Clorox Company against an advertisement by Reckitt-Benckiser (Malaysia), which has provided greater clarity on the boundaries of comparative advertising under the Code.
The Code generally allows comparative advertising in advertisements with other advertisers or products in the interests of competition – subject to the following conditions:
• principles of fair competition are respected, without consumers likely being misled;
• comparisons shall not confer an artificial advantage upon the advertiser or misleadingly suggest a better bargain; and
• comparisons shall be based on substantiated facts and shall be the same for all products compared, so that like is compared with like.
The above dispute concerned statements made by Reckitt in advertising its product, “Vanish – In Wash Stain Remover”. Clorox asserted that Reckitt’s advertisement denigrated bleach products in general and the reference to “bleach” as a comparison to “Vanish” – a different in-stain remover – was unfair.
The Bureau confirmed upfront that the entity or the brand of the competitor’s product need not be mentioned or identified for an advertisement to be deemed comparative advertising. The Bureau considered the basis of the comparison in accordance with the Code and specifically, that like must be compared with like. The Bureau clarified that comparisons in any advertising must be an “apples to apples” comparison: products substantively the same.
“Vanish” is a hydrogen peroxide-based bleach, whereas “bleach” is generally understood by consumers as being sodium hypochlorite-based. Furthermore, the function and utility of each of bleach-type is dissimilar. Accordingly, the Bureau held that a comparison was not made between like products.
Clorox also presented evidence and test results disputing Reckitt’s statements regarding the harmful effects of bleach and showed its health benefits. Moreover, both “Clorox Bleach” and “Vanish” had similar warnings on their products about the harmful effects to the skin and eyes if the products were not used as directed. Clorox argued that Reckitt’s advertising statements were unfair as they purported to represent that “Vanish” was a safer product compared to bleach. As the market leader, “Clorox Bleach” was allegedly impaired by Reckitt’s subject advertisement.
Based on the aforementioned, Reckitt was found to have breached the provisions of the Code. Since it was Reckitt’s first offence, the Bureau merely issued a warning to it to strictly adhere to the Code’s principles.
The above decision provides greater insight into the permissible limits of the Code regarding comparative advertising. Ultimately, advertisers must ensure that comparisons made are decent, truthful and respect the principles of fair competition. In particular, advertisers should draw comparisons between like products and it appears that this will be strictly construed in accordance with the products’ particular composition, notwithstanding the fact that they may generally be used for similar purposes.
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