The proliferation of equivalent goods and services compels businesses to engage in various activities to market their products and to stimulate consumers’ purchasing intentions. Today, advertising constitutes a significant part of commercial operations for enterprises. In this context, comparative advertising, which involves direct comparison with competing products or services, emerges as a prominent method in marketing communication.
- Regulation Of Comparative Advertising
Pursuant to Article 61 of the Consumer Protection Law No. 6502 (“CPL”), comparative advertising of competing goods or services that meet the same needs or serve the same purpose is permissible. Such comparative advertising must comply with the principles of fair competition and must not mislead the audience.[1]
Comparative advertising is defined in Article 4(ğ) of the Regulation on Commercial Advertising and Unfair Commercial Practices (“Regulation”), which came into force on January 10, 2015, as “advertisements in which aspects of the promoted goods or services are compared with those of competing goods or services that serve the same purpose or meet the same need.” Within this framework, for comparative advertising to be permissible, it is not necessary for the products or services to be identical in nature; rather, they must serve the same purpose or meet the same need. Although the permissibility of comparative advertising is provided under the CPL, detailed provisions regarding comparative advertising are addressed in Article 8 of the Regulation, as noted in the rationale of the CPL.
- Conditions Permitting Comparative Advertising
The implementation of comparative advertising is permissible only when the conditions specified in Article 8 of the Regulation are met concurrently. Accordingly, comparative advertising may be conducted in compliance with the following conditions:
Not including the names, trademarks, logos, trade names, business names, or other distinctive elements of competitors’ products.
Not being deceptive or misleading.
Not causing unfair competition.
Ensuring that the compared goods or services meet the same needs or serve the same purpose.
Comparing aspects that provide a benefit to the consumer.
Objectively comparing one or more material, essential, verifiable, and typical characteristics of the compared goods or services, including price.
Supporting claims based on objective, measurable, and numerical data with scientific tests, reports, or documents.
Not disparaging or denigrating competitors’ goods, services, activities, or other attributes.
Ensuring that, in comparisons involving goods or services with a specified origin, the products or services originate from the same geographic location.
Avoiding confusion between the advertiser’s and the competitor’s trademarks, trade names, business names, or other distinctive signs or the goods or services themselves.
Complying with the principles established by the Advertising Board.
On December 28, 2018, an amendment was made to the Regulation, stipulating that comparative advertising may be conducted under the condition that “the names, trademarks, logos, trade names, business names, or other distinctive elements of competitors’ products ” are not included. As a result, the second paragraph of the Regulation, which previously permitted direct comparative advertising under certain conditions allowing the inclusion of competitors’ names, trademarks, logos, or other distinctive forms or expressions, as well as trade names or business names, was repealed with the amendment. It should be noted that the provision allowing direct comparative advertising had its effective date postponed to January 1, 2019[2], and following the repeal resulting from the December 28, 2018, amendment, the provision was abolished before it could enter into force. The Advertising Board pays particular attention to this matter when evaluating comparative advertisements. The Board consistently finds advertisements that utilize distinctive elements such as logos, trademarks, or names of competing products or services to be unlawful.[3]
While the Regulation sets out the conditions under which comparative advertising may be conducted, it also specifies certain situations in which such advertising is categorically prohibited. Pursuant to Article 8 of the Regulation, comparative advertising is not permitted in food advertisements, statements containing health claims, and promotions related to dietary supplements. Furthermore, in sectors where pricing regulations and effective market power obligations are determined by the relevant administrative authorities, advertising based on price comparisons is prohibited.
- Comparative Advertising and Unfair Competition
Unfair competition is regulated in Articles 54 et seq. of the Turkish Commercial Code No. 6102 (“TCC”). The purpose of the provisions on unfair competition is to ensure fair and undistorted competition for the benefit of all participants. Article 55/1(a)-5 of the TCC specifically addresses comparative advertising that constitutes unfair competition. According to this provision, one of the primary acts considered unfair competition is: “comparing oneself, one’s goods, business products, activities, or prices with those of others in a manner that is false, misleading, unnecessarily disparaging to a competitor, or unfairly taking advantage of the competitor’s reputation, or promoting a third party through similar means.”
Generally, it is not unlawful for businesses to engage in comparative advertising. However, providing false or misleading information through comparative advertising, disparaging a competitor without justification, or exploiting a competitor’s reputation constitutes unfair competition. The Advertising Board has also indicated in its decisions that the comparative advertising of goods or services for which such advertising is prohibited results in unfair competition.[4]
Article 55/1(a)-5 of the TCC also considers promoting third parties through similar means as one of the acts constituting unfair competition. For a comparative advertisement to constitute unfair competition, it is irrelevant whether the advertiser is a competitor or a third party. Product comparison activities carried out by third parties, which are frequently encountered on social media, may also amount to unfair competition. In this context, when third parties engage in product comparisons in favour of consumers, they must act objectively and remain independent from the business that owns the product.
- Conclusion
Comparative advertising provides significant benefits, such as enabling consumers to access accurate information regarding product prices and discounts, fostering consumer-friendly outcomes through the resulting price competition, highlighting distinguishing features of the advertised products, and contributing to informed consumer choices that meet their needs. However, the realization of these benefits depends on certain conditions: comparative advertisements must contain truthful and verifiable information; they must not be misleading or deceptive; the compared goods or services must serve the same purpose; they must not include disparaging statements about competitors; and they must comply with the conditions prescribed by the relevant legislation. Accordingly, the examination and evaluation of comparative advertisements must be conducted with utmost diligence.
Kind regards,
[1] Explanatory Note to Article 61 of the Consumer Protection Law No. 6502.
[2] Regulation Amending the Regulation on Commercial Advertising and Unfair Commercial Practices, Official Gazette No. 30287, December 31, 2017.
[3] Advertising Board, Case No. D. 2024/3871, Decision No. 346, June 11, 2024; Advertising Board, Case No. D. 2023/6750, Decision No. 340, December 12, 2023; Advertising Board, Case No. D. 2018/3160, Decision No. 278, November 13, 2018; Advertising Board, Case No. D. 2017/1324, Decision No. 262, July 11, 2017; Advertising Board, Case No. D. 2015/364, Decision No. 236, May 12, 2015.
[4] Advertising Board, Case No. D. 2022/2087, Decision No. 324, August 9, 2022; Advertising Board, Case No. D. 2014/1791, Decision No. 235, April 22, 2015; Advertising Board, Case No. D. 2015/1002, Decision No. 242, November 10, 2015.
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