On 7 September 2010, Advocate-General delivered his Opinion in Case C-159/09 (Lidl /Vierzon) and concluded that comparative advertising for food products is not by definition unlawful.
As follows from the Opinion, a ‘sufficient degree of interchangeability’ between the compared food products is required for the comparison to be legitimate. Should the ECJ (officially: Court of Justice) follow the Opinion of the Advocate-General, the decision would have its impact in countries such as France where comparative advertising for food products is deemed unlawful by the courts due to the nature of the products involved.
This case concerns an advertisement placed by Vierzon (which exploits supermarket Leclerc) in a local French newspaper in which it compared receipts of purchases of mostly similar food products in several supermarkets including Leclerc and Lidl. The advertisement also contained a slogan which stated that Leclerc was the cheapest supermarket.
Lidl instigated legal proceedings against Vierzon in the Commercial Court of Bourges (France) for breach of the rules on comparative advertising.
The question posed to the ECJ by the Commercial Court of Bourges concerns the question whether or not the provisions on comparative advertising are applicable to a comparison between food products. More specifically, whether it is unlawful to engage in comparative advertisement on the basis of the price of products which are sufficiently interchangeable on the sole ground that, in regard to food products, the extent to which consumers would like to eat those products, or in any case the pleasure of consuming them, is completely different according to the conditions and the place of production, the ingredients used and the experience of the producer.
The Advocate-General considers that a sufficient degree of interchangeability is required for a legitimate comparison between food products. It is thus not required that the compared food products have totally equivalent taste characteristics, meaning that the tastes of the compared food products may differ. The Advocate-General points out that comparative advertising would lose its meaning when only identical products or products having totally equivalent characteristics could legitimately be compared in advertisements, as the aim of comparative advertisement is to compare different products by highlighting their qualities and flaws.
In order to determine whether or not there is a sufficient degree of interchangeability between the compared food products, the Advocate-General states that a national court should take the current market situation as well as the future market possibilities into account, without limiting itself to the local/regional consumer habits. The Advocate-General emphasises that the assessment of the degree of interchangeability of the food products must be done on a case-by-case basis and mentions that elements such as the quality of the compared food products or the assortment to which the food products belong may also be of influence.
He concludes that comparative advertising for food products which differ in taste is lawful provided that there is a sufficient degree of interchangeability between the compared food products and the ad meets the requirements as listed in the European Directive on misleading and comparative advertising.
Should the ECJ follow this Opinion of the Advocate-General, the decision would have an impact in countries such as France where Courts have given a strict interpretation to the requirements of comparative advertising. This will pave the way for advertisements comparing food products in countries where this was up until now deemed unlawful by national courts. Additionally, should the relatively low threshold of ‘sufficiently interchangeable products’ be upheld by the ECJ, it will be difficult for producers of ‘exclusive’ food products to act against an advertisement in which the ‘exclusive’ food product is compared to a (cheaper) alternative. The producer of the ‘exclusive’ food product will for example not be able to argue that his product can not be compared to the alternative food product solely for the reason that his product tastes differently.