Apples Versus Oranges: The Legal Framework for Comparative Advertising in Türkiye

Introduction

Comparative advertisements have emerged as a prevalent marketing strategy today, significantly influencing consumers' decision-making processes.

Comparative advertising is defined as advertising that compares the features, performance, or advantages of a promoted product or service with competing products, and through this comparison generally aims to make their own product appear superior or more attractive.

In Türkiye, the use of comparative advertisements is regulated under the Law No. 6502 on the Protection of Consumers ("Law") and the Regulation on Commercial Advertising and Unfair Commercial Practices ("Regulation"). This article will examine the legal framework, conditions of lawfulness and the practice of comparative advertising in Türkiye, providing valuable insights for advertisers to effectively and lawfully utilize this strategy.

Conditions of Lawfulness

For a comparative advertisement to be deemed lawful under Article 8 of the Regulation, the following conditions must be met:

1. Avoid using distinctive features of competitor’s brands.
2. Ensure that the advertisement is not deceptive or misleading.
3. Avoid practices that may create unfair competition.
4. Only compare products or services that meet the same needs or serve the same purpose.
5. The feature being compared should be beneficial to the consumer.
6. An objective comparison of the significant, verifiable, and typical features, including price, should be made.
7. Claims must be substantiated by scientific evidence, objective and measurable, and based on numerical data.
8. Avoid disparaging or discrediting the competing brands.
9. If the origin is specified, the compared goods or services must be from the same geographical location.
10. Avoid causing confusion between the advertiser’s and the competitor’s trademarks, trade names, business names, and other distinctive signs, as well as their respective goods or services.
11. Compliance with the principles set by the Advertising Board should be ensured.

Furthermore, Article 61 of the Law emphasizes that commercial advertisements must adhere to the principles established by the Advertising Board, general morality, public order, respect personal rights, and be accurate and honest.

Burden of Proof and Responsibility

The obligation of advertisers to prove the accuracy of claims made in commercial advertisements is regulated under Article 9 of the Regulation. In this regard, claims presented and compared in comparative advertisements must be supported by information and documents obtained from relevant university departments or accredited, independent research, testing, and evaluation organizations. These reports must be capable of substantiating the claims made in the advertisement as of the date of its publication. In addition to presenting the necessary documents, it is also the advertiser's responsibility to ensure that the principles specified in the Regulation are adhered to.

Administrative Penalties

If non-compliance is detected as a result of the examinations and inspections by the Advertising Board, penalties such as suspension of the advertisement, correction through the same method, administrative fines, or, if deemed necessary, provisional suspension of up to three months may be imposed. The Advertising Board may impose these penalties either jointly or separately, depending on the nature of the violation. The administrative fine, depending on how the violation occurs, can reach amounts exceeding TRY 2,200,000 for the year 2024. Moreover, if the violation recurs within a year, an administrative fine of up to ten times the specified amount can be applied. It should be noted that correcting or compensating for the advertisement that constitutes non-compliance with the regulations does not eliminate the advertiser's responsibility.

Conclusion

The legal framework of comparative advertising in Türkiye is shaped by strict rules and conditions set forth by the Law on the Protection of Consumers and the Regulation on Commercial Advertising and Unfair Commercial Practices, and the principles set by the Advertising Board.

There are no legal obstacles to comparative advertising as long as it complies with the relevant regulations. It is also important to note that advertisements violating regulations are subject to severe penalties, and repeated violations can result in even harsher sanctions. Therefore, advertisers should adopt a meticulous approach when preparing comparative advertisements, ensuring compliance with regulations and ethical standards. By doing so, they can fulfil their responsibility to provide accurate information to consumers and avoid issues that could lead to severe penalties and legal risks.

With thanks to Alp Mete Şirin for his contribution.

References

1. Bahar Gürdin, (2020). Direct and Indirect Comparative Advertising Effectiveness. (Only in Turkish) Süleyman Demirel University Journal of Institute of Social Sciences, Issue 36, 131-163
2. İbrahim Aydın, (2017). Comparative Advertisings from Marketing Perspective (Only in Turkish), Muş Alparslan University Journal of Social Sciences, Volume-5, Issue 3, 899-921
3. Soner Kenaroğlu, (2008), Comparative Advertising in Unfair Competition Law (Only in Turkish), Istanbul University Institute of Social Sciences, Department of Private Law (Master's Thesis)
4. İlhami Güneş (2008), Use of a Competitor's Brand in Comparative Advertising, (Only in Turkish), Terazi Law Journal, Volume 3, Issue 27, 71-75