New Appeal: What is the correct test for lawful comparative advertisement?

In this determination, Aldi Stores (Ireland) Ltd v Dunnes Stores, the Supreme Court granted Aldi leave to appeal on the question: what is the correct test for lawful comparative advertisement under the European Communities (Misleading and Comparative Advertising) Regulations 2007?

 

Background

In 2013, Aldi applied to the High Court for an injunction prohibiting Dunnes Stores from continuing with a comparative advertisement campaign which compared various Dunnes and Aldi products. Aldi alleged, among other things, that Dunnes’ campaign did not use comparable products and was unlawful under the European Communities (Misleading and Comparative Advertising) Regulations 2007.

In the High Court, Dunnes argued that food products are comparable if they have a comparable nutritional value, and cosmetic products are comparable if they fulfill the same need. But Cregan J (here) was persuaded by the test proposed by Aldi’s expert witness who introduced his five cornerstones of comparison test: comparisons on quantity, provenance, nature, substance and quality. For example, Dunnes compared its own 23 meter long toilet roles to Aldi’s 29 meter rolls; Aldi’s pork sausages carried the Bord Bia symbol but Dunnes’ didn’t; Aldi’s anti-wrinkle cream contained sun protection, but Dunnes’ didn’t; and Aldi’s ketchup contained over 70% more tomatoes than the ketchup that Dunnes compared it to for price. Dunnes compared those products on price alone.

Cregan J held in Aldi’s favour.

The Court of Appeal (here) overturned that decision (in part), holding that the High Court had applied the wrong test.

 

Supreme Court

Aldi applied to the Supreme Court for leave to appeal. One of the grounds Aldi argued was that the Court of Appeal dismissed the High Court’s test but did not define what the correct test is.

Granting leave, the Court determined that Aldi had, on that ground, raised an issue of general importance and granted leave on that issue only.

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