Sainsbury's Supermarkets Ltd, R (on the application of) v The Independent Reviewer of Advertising Standards Authority Adjudications

Comparative advertising of food products is not unlawful merely because the products differ in provenance, ethical credentials or certification. The question under CAP Code rule 3.34 and Article 4(b) of Directive 2006/114/EC is whether the products display a sufficient degree of interchangeability to meet the same needs or serve the same purpose. That is a fact-sensitive assessment requiring individual consideration of the products concerned. The assessment must favour permitting objective comparative advertising, subject to safeguards against misleading or unverifiable claims. An expert advertising regulator may reach that assessment using its own judgment and experience; consumer research is not invariably required. A challenge to an independent reviewer’s decision is confined to issues raised before the reviewer and does not permit the court to substitute its own factual assessment.

Sainsbury’s sought judicial review of a decision by the Independent Reviewer of Advertising Standards Authority Adjudications. The Reviewer had concluded that there was no substantial flaw in the ASA’s decision concerning Tesco’s Price Promise advertising campaign.

The ASA had found that various own-label and fresh food products, including products differing in provenance, ethical certification and labelling, could be compared because they met the same need or served the same purpose under CAP Code rule 3.34. Sainsbury’s argued that the ASA had applied the wrong test, permitted Tesco excessive discretion, relied on information unavailable to consumers, and failed to reconcile the campaign with another Tesco campaign. The central issues were the proper meaning of sufficient interchangeability and the intensity of review applicable to the Reviewer’s decision.

1. Scope of review. The judicial review was directed to the Independent Reviewer’s decision, not directly to the ASA adjudication. The court could consider only matters raised expressly or by necessary implication in Sainsbury’s request to the Reviewer.
2. Legal test. Whether products meet the same need or are intended for the same purpose is governed by the sufficient-interchangeability test explained in Lidl v Vierzon [2011] 2 CMLR 10. There is no inflexible rule that objectively established non-price differences, or differences material to a reasonable proportion of customers, necessarily prevent comparison. The assessment is individual, specific and a matter of fact and degree. The statutory scheme is to be interpreted in the sense most favourable to comparative advertising.
3. Determining-factor issue. The Reviewer was entitled to read the ASA adjudication as applying no rigid requirement that a non-price feature be the determining factor in a customer’s purchase. The ASA had instead treated a feature as material where it was significant and likely to affect the customer’s decision to buy. Whether the “determining factor” approach was legally permissible was a hard-edged question of law, but the ASA had not adopted that unlawful test.
4. Regulatory assessment. The ASA was entitled to use its own expertise and common sense when assessing individual products. There was no legal requirement to commission consumer research. Its conclusions on provenance in relation to the ready meal and value ham were within the range of lawful decisions.
5. Fish products and campaigns. The ASA had reached its conclusion that the fish products were comparable before receiving information about their common sourcing. It therefore had not improperly relied on information unavailable to consumers. The ASA was also entitled to regard the Price Promise and We are changing campaigns as having different commercial messages.
6. Disposition. The application for specific disclosure was refused. The claim for judicial review was dismissed.

First-instance judicial review. The court refused specific disclosure and dismissed the claim challenging the Independent Reviewer’s decision.