The two supermarkets had price matching comparison schemes. Sainburys complained that the Independent Reviewer’s decsion that the ASA’s response to is complant as to the Tesco scheme was itself flawed. They had complained that the selections for comparison made by Tesco were of a lower quality. The independent reviewer had acknowledged the different elements of value in the Sainsburys products, but had used for the applicable standards, that marketing communications ‘must compare products meeting the same need or intended for the same purpose’ ignoring provenance and other ethical issues.
Held: The request fro review failed. Upon a proper reading of the ASA adjudication and in the light of the earlier drafts, it could not be said to be substantially flawed.
Accordingly the conclusion of the IR that it was not substantially flawed remains lawful. There can be no rule that products which differ in terms of ethical credentials or provenance cannot be compared: the question is one of fact and degree to be considered in relation to each particular product comparison.
The question whether the ‘determining factor’ test was a lawful one for Tesco to have applied, in deciding whether products were ‘sufficiently interchangeable’ is a hard edged question of law and not a matter to be determined on a ‘Wednesbury reasonable’ basis.
Wilkie J
[2014] EWHC 3680 (Admin)
Bailii
EU Directive 2006/114/EC 4
England and Wales
Citing:
Cited – Pippig Augenoptik GmbH and Co. KG v Hartlauer Handelsgesellschaft mbH ECJ 8-Apr-2003
ECJ Judgment – Approximation of laws – Directives 84/450/EEC and 97/55/EC – Misleading advertising – Conditions for comparative advertising to be lawful . .
Cited – De Landtsheer Emmanuel v Comite Interprofessionnel du Vin de Champagne ECJ 19-Apr-2007
ECJ Approximation of Laws – Directives 84/450/EEC and 97/55/EC – Comparative advertising Identifying a competitor or the goods or services offered by a competitor Goods or services satisfying the same needs or . .
Cited – Lidl SNC v Vierzon Distribution SA ECJ 18-Nov-2010
ECJ Directives 84/450/EEC and 97/55/EC – Conditions under which a comparative advertising is permitted – Price comparison based on selection of food products marketed by two competing retail store chains – Goods . .
Cited – Tweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
Cited – Regina (on the Application of P Richards and G Richards) v Pembrokeshire County Council CA 29-Jul-2004
Challenge to parking regulations.
Held: The appeal succeeded. In assessing the decision it was open to the court to consider and elucidate the reasoning behind the option of the parking scheme. Assuming that the 1975 Order was valid, the . .
Lists of cited by and citing cases may be incomplete.
Media
Updated: 09 November 2021; Ref: scu.538539
