New regulations governing misleading and comparative marketing communications
came into effect in Ireland on 20 November 2007.

The European Communities (Misleading and Comparative Marketing Communications) Regulations 2007 supplement and update the previous legal position regarding such marketing activities. Implementing an EU Directive, the Regulations seek to protect consumers against "product puffing" or inaccurate product comparisons. The Regulations provide greater clarity in respect of the ability to reference or portray a competitor's product or business for advertising purposes, and are to be welcomed in that regard.

The Regulations ambit is very broad and includes all goods (including real or personal property), services and any form of representation made by a trader in connection with a trade, business or profession.

The new law prohibits misleading advertising, and provides that an advertisement is misleading if it deceives or is likely to deceive the target audience and (by reason of its deceptive nature) it is likely to affect a trader's economic behaviour, or injures or is likely to injure a trader's competitor. Helpfully, the Regulations detail an illustrative list of activities to be considered when deciding whether an activity is misleading or deceptive.

The Regulations also prohibit comparative marketing communications which are misleading or confusing. A "comparative marketing communication" is defined as any form of representation made by a trader that explicitly or by implication identifies a competitor of the trader or a product offered by such a competitor. Again, a useful checklist is supplied in the law setting out factors to be used in applying the very broad prohibition.

In light of the new law, it is advisable that Irish businesses reassess their marketing practices to ensure compliance with the Regulations. Should an action be take under the Regulations the burden of proof is placed on the advertiser to demonstrate that its advertising or representation is true in response to any allegation. A range of sanctions are available to either the Circuit Court or the High Court in which a successful action is taken.

The European Communities (Misleading and Comparative Marketing Communications) Regulations 2007 introduce useful causes of action to those that feel that their competitors are operating unfairly by making misleading representations, or unfairly comparing their business or products.

Marketing, including, comparative advertising, can be a powerful and effective tool in product promotion but it must be carried on now with an understanding of the regulatory landscape.

March 2008.

For further information please contact Deirdre Kilroy.