The following is for educational purposes, and not meant to be legal advice.
In Canada, comparative advertising may be a representation directed at the public or a targeted customer. Specific guidelines for comparative advertising include:
(a) Ensure that representations are true and not misleading.
Note: In Quebec, a true statement that is not made in the public interest, but to harm a competitor, may constitute defamation.
(b) Refrain from making any comments with respect to a competitor’s products, unless it is certain that such comments are correct and not misleading.
(c) Do not distort the competitor’s nor a company’s products in a comparison. Though, comparative advertisements need not compare all the features and functions of the company’s products with those of a competitor.
(d) Do not use comparative data to imply the general superiority of a product, unless such a claim is valid over a comprehensive range of normal conditions of use. If the superiority of the product is limited to a certain range of conditions, then any superiority claim should be clearly qualified to reflect that range.
(e) Show comparisons demonstrating the relative effectiveness of competing products under equivalent conditions. Demonstrations of the relative effectiveness of products should not attempt to compare products in use or under methods of application for which they have not been designed or recommended.
(f) Conclude performance tests before making any representation. The tests should not be too broad, such that it is relevant under only one condition of use. The results must not only be significant but must be meaningful. Care must be taken to ensure that the testing methodology produces results that are reproducible.
(g) When making price representations, ask whether the representation leads a reasonable customer to conclude that the comparison price quoted is that at which the product has been ordinarily sold. If the answer to the question is “yes”, and the comparison price is not the regular market price, such a comparison should not be made.
(h) Do not rely on out-of-date pricing history. A comparison price should be one at which the product was sold during a period sufficiently recent as to have relevance or, in a case where the representation relates to an introductory offer, the offer should not be outstanding for a prolonged period.
(i) Reflect substantial sales volume when quoting a comparison price.
Example: The price of a product is raised for a few weeks, during which few sales take place, and then reduced. Company should not suggest that the inflated price was the regular price. The relevant price is that at which the product is sold, not merely offered for sale.
(j) Do not mark products or packages with competitors’ trademarks.
(k) Place any comparisons (such as a chart) on a separate document.
(l) Do not identify a competitor in a representation, unless absolutely certain that the representation is correct and not misleading. This is especially important if the competitor can easily be identified based on the representation. For example, when the competitor is a sole competitor or occupies a dominant position in the marketplace.
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