Sea Harvest alleges something fishy about I&J advertisement
1/06/2009

In a recent ruling of the Advertising Standards Authority (ASA) Directorate, Sea Harvest Corporation and Irvin & Johnson (I&J), two major competitors in the seafood product market, came head to head over a television commercial advertising “I&J Light & Crispy” frozen fish products.

The commercial in issue starts by showing a split screen with similar fish products on each side, one having a very appetising look while the other is made to look unappetising. The appetising fish product is identified as “I&J Light & Crispy” and the other product is referred to as “Brand X”. The commercial then shows two families, one eating the appetising fish product while the other family is visibly unhappy. The unhappy family moves over to the other side of the screen and is welcomed by the happy family.

Sea Harvest lodged a complaint with the ASA, claiming that the advertisement was disparaging and an unacceptable form of comparative advertising as it discredited its own fish product. Sea Harvest submitted that, as it and I&J were the only major players (and competitors) in the frozen fish market, a reasonable consumer would automatically associate “Brand X” with it. It submitted therefore that the comparison made in the advertisement was between “I&J Light & Crispy” and its own fish products. Sea Harvest argued that the commercial implied that its products were inferior to those of I&J.

In response, I&J submitted evidence that it was not the only role player in the frozen fish market. Many retail chains market frozen fish products under house brands. It was submitted that the fish product on the “unappetising side” could be any fish sold by a wide range of distributors and there was no indication that this product was associated with a specific supplier. I&J also submitted that the prohibition of disparagement must be construed narrowly so as not to infringe I&J’s constitutional right to freedom of commercial expression.

The Directorate accepted that the advertisement was comparative and might even be disparaging. It indicated that the issue before it was whether, “when seen objectively from the viewpoint of the hypothetical person, who is neither hypercritical nor insensitive”, the advertisement identified the complainant in any way.

On the evidence before it, the Directorate concluded that there might be some consumers who would associate the “other brand” with Sea Harvest. However, on viewing the commercial objectively, it found that there were no elements in the advertisement that could reasonably identify Sea Harvest as the “other product”. For example: there was no use of or reference to any element of Sea Harvest’s branding or its name either directly or indirectly. The Directorate found it unnecessary, in light of its ruling, to consider I&J’s submissions regarding its constitutional right to free expression. The complaint was dismissed.

The ruling is certainly a victory for I&J. It seems to suggest that while comparative advertising is permitted, caution should be exercised to ensure that it is acceptable under the ASA Code, specifically clause 7. In addition, while the Directorate of the ASA held that the advertisement might be “potentially disparaging”, the specific visuals and comparison did not fall foul of ASA Code, as the advertisement did not attack or disparage a particular advertiser or product.

The decision confirms that comparative advertising is permitted provided that it complies with the ASA Code and, if “disparaging” another product, such a comparison highlights a weakness in the industry and is true and in the public interest.
Janine Thomas
Associate
Adams & Adams
Janine-t@adamsadams.co.za
Marilyn Krige
Partner
Adams & Adams
MK@adamsadams.co.za