Comparative advertising

Product-to-product comparative advertising is limited to the advertiser's own products with the comparator product named, and comparative advertising against other companies' products is prohibited whether explicit or implicit.

An advertisement is false, lacking in fair balance, or otherwise misleading if it contains a drug comparison that represents or suggests that a drug is safer or more effective than another drug in some particular when it has not been demonstrated to be safer or more effective in such particular by substantial evidence or substantial clinical experience.

A therapeutic comparative claim must involve drugs sharing an authorized indication, compare them under the same conditions of use, not conflict with the compared products' terms of market authorization, be clinically relevant, rest on conclusive evidence, and identify the compared entities.

Advertising of a medicinal product to the general public must not contain any material that suggests that the effects of taking the medicine are better than, or equivalent to, those of another treatment or medicinal product (Directive 2001/83/EC, Article 90(b)), and all advertising must comply with the summary of product characteristics and must not be misleading (Article 87(2)-(3)). The text of Directive 2006/114/EC on misleading and comparative advertising has now been obtained and read. Article 1 states its purpose as protecting traders against misleading advertising and laying down the conditions under which comparative advertising is permitted, so its protective addressees are traders. Article 2(c) defines comparative advertising as any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor. Article 4 permits comparative advertising, as far as the comparison is concerned, only where all of the following are met: (a) it is not misleading within Articles 2(b), 3 and 8(1) of that Directive or Articles 6 and 7 of Directive 2005/29/EC; (b) it compares goods or services meeting the same needs or intended for the same purpose; (c) it objectively compares one or more material, relevant, verifiable and representative features, which may include price; (d) it does not discredit or denigrate the marks, names, goods, services, activities or circumstances of a competitor; (e) for products with a designation of origin, it relates to products with the same designation; (f) it does not take unfair advantage of the reputation of a competitor's mark or name or of a competing product's designation of origin; (g) it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name; and (h) it does not create confusion among traders, between the advertiser and a competitor, or between their marks, names, distinguishing marks, goods or services. Article 7 requires Member States to empower courts or administrative authorities to require the advertiser to furnish evidence of the accuracy of factual claims, in a short period of time in the case of comparative advertising, and to consider factual claims inaccurate if that evidence is not furnished or is deemed insufficient.

In advertising to the general public, comparative claims against another named product such as 'works faster than XXX' are prohibited, although a category claim such as 'works faster than standard tablets' is permitted if supported by evidence.

Advertisements for medical services, drugs and medical devices must not contain comparisons with the efficacy or safety of other drugs or medical devices, or with other medical institutions.

An advertisement about therapeutic goods must not compare the goods with other therapeutic goods, classes of therapeutic goods or therapeutic services where the comparison suggests that the comparator goods or services are harmful or ineffectual.

In advertising a drug it is prohibited to make an advertisement that disparages another product, or that is suspected of disparaging it, irrespective of whether the content is true, and it is prohibited to advertise efficacy or performance with content such as 'this is definitely guaranteed' or with absolute expressions such as 'the best' or 'the finest'; for quasi-drugs, comparative statements about competing products must be made in accordance with the facts and exclusive absolute expressions such as 'the best' or 'the finest' may not be used.

Statements comparing a medicinal product with other medicinal products are permitted only if they are scientifically correct and are based on equivalent clinical trials or data collections meeting the requirements of Art. 5(5), and where the studies used for the comparison rest on in vitro or animal experiments (for human medicines) this must be openly disclosed.