Is It Really Better?
Article 8 of the Regulation on Commercial Advertisement and Unfair Commercial Practices (“Regulation”) permits comparative advertisements under specific conditions. Subparagraph (a) of the paragraph 1 of the article requires that such advertisements “should not be misleading or deceptive”, while subparagraph (f) mandates that “claims based on objective, measurable, and numerical data must be substantiated by scientific tests, reports, or documents”. The Regulation also specifies the advertiser's obligation to substantiate their claims and outlines how this proof should be carried out in comparative advertisements in Article 9 titled “Burden of Proof”. According to this provision, "claims made in comparative advertisements and subject to comparison must be substantiated by information and documents obtained from relevant departments of universities or accredited or independent research, testing, and evaluation institutions." Additionally, the regulation stipulates that reports submitted for the substantiation of claims in advertisements must be valid and provide evidence for the claims at the time the advertisement is broadcast.
In 2024, the Advertisement Board (“Board”) rendered landmark decisions providing guidance on the substantiation of comparative advertisements, which included detailed reviews and are considered to constitute the principle.
- The Board identified that in the promotions of a leading e-commerce company in Türkiye, the phrase “Türkiye’s most recommended e-commerce brand” was accompanied by a disclaimer stating that it was based on the results of an online survey conducted by an independent research company between the dates January 2023 - December 2023, conducted with 21,600 participants. The advertiser submitted the mentioned research report to the Board as evidence for substantiating the claim. Based on the research report, the Board concluded that the claim was substantiated in accordance with the principles outlined in Article 9 of the Regulation. However, the Board concluded that the study did not have the breadth and certainty required to substantiate the claim "Recommended by the whole of Türkiye". The decision also addressed the advertiser's social media promotions, which included phrases such as “Türkiye’s number one”, “No. 1”. The Board noted that these promotions did not reference the research and failed to establish a connection between the claim of being “No. 1” and the claim of being “the most recommended.” As a result, the Board found the manner of presentation and the proof of the promotions to be misleading for average consumers and decided to impose an administrative fine on the advertiser and suspend the advertisements.
- In another promotion reviewed by the Board, the advertiser submitted a research report in support of their claim “much easier to clean than the other Airfryers on the market”. However, the Board found that the report did not specify which competitor products were included in the study and that the research did not reflect the results for all competitor products in the “Airfryer” category. The Board assessed that the burden of proof specific to comparative advertisements had not been met in relation to the claims made in the advertisements. As a result, the Board decided to suspend the advertisements.
In its decisions, the Board has clearly stated that in order to substantiate claims of superiority, all products and services in the relevant market must be compared, and the research conducted must contain sufficient data to prove the claim. In the decision regarding the e-commerce company, it was noted that the research conducted with 21,600 participants did not encompass all of Türkiye or the wide variety of services offered by the advertiser’s e-commerce platform. Given that the claim of being “the most recommended” could pertain to a range of conveniences and advantages offered by e-commerce platforms, it is evident that this claim alone is insufficient to substantiate the “No. 1” claim. Similarly, in order to substantiate the claim “much easier to clean than the other Airfryers on the market”, all competitor products in the market should have been included in the research.
In some of its decisions, the Court of Cassation has held that although exaggerated expressions can be used in advertisements, and their use does not necessarily render the advertisements as directly misleading,[1] the expressions in the aforementioned promotions are not merely exaggerated but are based on unsubstantiated data, which could be considered misleading to consumers. In its established case law, the Court of Cassation does not generally find it unlawful for businesses to highlight the superior aspects of the products or services they offer; however, when specific and concrete superiority claims are made in advertisements, these claims must be substantiated as a requirement of the principle of good faith. In fact, in the decisions mentioned above, the Board thoroughly examined the scope of the products and services involved in the advertisement, the presentation of the advertisements, and the content of the research presented to fulfil the burden of proof, and, in our opinion, came to an appropriate conclusion. We believe the Board's interpretation in these decisions aligns with the purpose and framework of legal regulations concerning the substantiation, or proof, of claims in comparative advertisements.
Indeed, terms like “best”, “first”, “only” and “number one” are frequently used in advertisements. These terms implicitly compare the advertiser or their products and services with competitors in the market and containing a claim of superiority. However, under the Regulation, for such advertisements to be lawful, they must be substantiated. In its recent decisions, the Board makes an assessment from the perspective of consumers when evaluating claims of superiority and comparison and the Board may expect that the research presented to substantiate such claims includes all competing companies or their products and services.