What the Commission says about comparing brands by name

The short answer

The Federal Trade Commission maintains a policy statement on comparative advertising, published among its administrative interpretations and enforcement policy statements.

Its position is stated in one sentence. Commission policy in the area of comparative advertising encourages the naming of, or reference to competitors, but requires clarity, and, if necessary, disclosure to avoid deception of the consumer.

It adds a second half aimed elsewhere: the use of truthful comparative advertising should not be restrained by broadcasters or self-regulation entities.

That second half is the point of the document. Its stated purpose is that industry self-regulation should not restrain the use by advertisers of truthful comparative advertising, and it was issued after the Commission's staff examined industry codes, statements of policy, interpretations and standards, many of which contained language that could be interpreted as discouraging comparative advertising.

What the statement defines a comparison as

A footnote supplies the definition the statement runs on, and it is narrower than the everyday sense of the word.

For purposes of the policy statement, comparative advertising is defined as advertising that compares alternative brands on objectively measurable attributes or price, and identifies the alternative brand by name, illustration or other distinctive information.

Three elements sit inside that. Alternative brands. Objectively measurable attributes or price. And identification of the alternative brand, which may be by name, by illustration, or by other distinctive information.

The phrase objectively measurable does a great deal of work. A comparison on something that cannot be measured is not what the footnote describes, and the statement is written about the category it defines.

The identification element is worth noticing too. Identification by illustration or other distinctive information means a comparison can name a competitor without printing its name.

The substantiation point runs the other way from what people expect

The statement addresses substantiation directly, and its conclusion is often quoted backwards.

It notes that on occasion a higher standard of substantiation by advertisers using comparative advertising has been required by self-regulation entities. It then states the Commission's position: the Commission evaluates comparative advertising in the same manner as it evaluates all other advertising techniques.

The ultimate question, the statement says, is whether or not the advertising has a tendency or capacity to be false or deceptive, and that this is a factual issue to be determined on a case-by-case basis.

What it concludes is that industry codes and interpretations imposing a higher standard of substantiation for comparative claims than for unilateral claims are inappropriate and should be revised.

The same standard, in other words, not a lower one. A policy statement encouraging comparisons is not a policy statement relaxing what a comparison has to be able to support. On the contrary, its point is that comparative claims and ordinary claims are held to the same measure.

Disparagement is not the test

The statement takes up a family of prohibitions found in industry codes, listing terms such as disparagement, disparagement of competitors, improper disparagement, unfairly attacking and discrediting, and observing that these may operate as a restriction on comparative advertising.

It states that the Commission has previously held that disparaging advertising is permissible so long as it is truthful and not deceptive.

It then reproduces a passage from one of its own decisions, in which the Commission explained why it had removed a catch-all phrase from an order. Printed inside the policy statement, that passage says the phrase would have prevented respondents from making truthful and non-deceptive statements that a product has certain desirable properties or qualities which a competing product or products do not possess, and that such a comparison may have the effect of disparaging the competing product, but that the Commission knew of no rule of law preventing a seller from honestly informing the public of the advantages of its products as opposed to those of competing products.

The statement closes that passage with a warning about the codes it was written against: industry codes which restrain comparative advertising in this manner are subject to challenge by the Federal Trade Commission.

The load-bearing words in all of it are truthful and not deceptive. The statement is about who may restrict a comparison, not about whether an untruthful comparison is acceptable.

Two other policy statements in the same part

The part carrying the comparative advertising statement carries several others, and two are relevant to how a seller collects and presents information.

One addresses disclosures in materials not written in English. Where cease-and-desist orders, rules, guides and other statements require clear and conspicuous disclosure of certain information in an advertisement or sales material in a newspaper, magazine, periodical or other publication that is not in English, the disclosure shall appear in the predominant language of that publication. In the case of any other advertisement or sales material, the disclosure shall appear in the language of the target audience, ordinarily the language principally used in the advertisement or sales material.

The statement adds that a respondent who fails to comply may be the subject of a civil penalty or other law enforcement proceeding for violating the terms of a Commission cease-and-desist order or rule. It is an enforcement policy about how an existing disclosure obligation is satisfied, and it is a different instrument from the language-access obligations that separately apply to certain health programs.

The other addresses a promise of anonymity. The Commission states it has reason to believe that it is an unfair or deceptive act or practice to induce consumers to provide information about themselves by expressly or implicitly promising that the information is being provided anonymously, when in fact a secret or invisible code is used on the survey form or return envelope that allows identification of the consumer who provided it.

It names circumstances in which it believes such coding may cause significant consumer harm: where a misleading promise of anonymity is used to obtain highly sensitive information a consumer would not choose to disclose if informed that a code allowing identification was being used, and where information of any sort is used for purposes other than those of the market survey.

That statement was written about paper questionnaires in the 1970s. What it identifies is a mismatch between a promise of anonymity and a mechanism that defeats it, which is a description of a structure rather than of a medium.

What this means for reading a comparison, including this one

A published comparison makes claims, and the policy statement is explicit that those claims are evaluated the same way any other advertising claim is. Encouragement to compare is not a lower burden of proof.

The footnote definition supplies the questions worth asking of any comparison. Are the attributes being compared objectively measurable, or are they impressions. Are the bases of comparison clearly identified, which the statement separately says the Commission has supported. And is the alternative brand identified, whether by name or otherwise.

This site publishes comparisons, so the same questions apply to it. Everything on a comparison page here was read from the outside, from pages sellers wrote about themselves, which is a limit on what any of it can settle. Where a figure appears it carries the date it was verified, because a price without a date is not a fact anyone can rely on.

Nothing in this article says any comparison anywhere is accurate or inaccurate, and no company is named. The policy statement describes a category and the standard applied to it, and that is what has been described here.

Sources

Each document below is named as it names itself, with the date printed on that document rather than the day it was read.

1. Title 16 Code of Federal Regulations Part 14, Administrative Interpretations, General Policy Statements, and Enforcement Policy Statements, read in full — section 14.9 on clear and conspicuous disclosures in foreign language advertising and sales materials; section 14.12 on secret coding in marketing research and a promise of anonymity; section 14.15 in regard to comparative advertising, including its footnote definition, the disparagement discussion with the passage quoted from the Commission's own decision, and the substantiation paragraph; and section 14.16 on Truth-in-Lending order interpretation; authority note 15 U.S.C. 41-58, with section 14.15 at 44 FR 47328, Aug. 13, 1979 and section 14.9 at 38 FR 21494, Aug. 9, 1973 as amended at 63 FR 34808, June 26, 1998 — Electronic Code of Federal Regulations, Office of the Federal Register, September 2026