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15-Second Note to In-House Counsel: Three Steps To Take Before Approving Comparative Claims

Date: Nov 15, 2011

Comparative advertising can be very effective. However, to the extent that targeted competitors suspect that the claims are not substantiated adequately, there is a serious risk of challenge. Here are three preliminary steps to reduce that risk.

1. MAKE SURE COMPARATIVE CLAIMS ARE WORTH THE RISKS

Before approving even the concept of making comparative claims, answers should be sought to these questions, among others: Would the claims adversely change the nature of competition in the category by, for example, provoking a comparative claims "horse race?" Would a test have to be done to substantiate the claim? If so, what are the generally accepted standards, timeframes, and costs applicable to such a test to assure statistically significant and otherwise bullet-proof results? If the test fails, what is "Plan B" and will there be time to implement it? Could the claims easily be rendered false or obsolete, such as by a competitor's reformulation of the compared product? Is the company ready, willing, and able to defend a court challenge to any such claims?

2. MAKE SURE RESEARCHERS ARE QUALIFIED AT ALL LEVELS

Substantiation for a comparative claim often is in the form of test results, such as taste or performance tests. It usually is preferable to have such research done by an independent entity and supervised there by a qualified expert who has experience defending tests in depositions, at trial, or before industry regulators or self-regulators. Such an expert should be consulted before a decision to make the claims is made.

3. BE PREPARED FOR INFORMATION DEMANDS

It is common for comparative claims to provoke a demand by the targeted competitor(s) to review, immediately, the substantiation for the claims. The substance of a well-thought-out and approved response to any such demand should be in-hand before the claims are issued. It should provide enough information to indicate that a legal challenge would be fruitless, but avoid revealing detailed information that could lead to nit-picking or to the needless disclosure of proprietary information.