Comparative Advertising and Competition Policy- Илтгэл

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8.1. Introduction 1

8.2. Legislation and Legal Practice
8.3 Analysis of Selected Antitrust Cases
8.4 Economic Perspectives on Comparative Advertising
8.5. Conclusion

8.1. Introduction

Until very recently several continental European countries completely had banned any form of comparative advertising whereas, in the US, the use of comparative advertising has actually been encouraged by the Federal Trade Commission since the 1970’s. This paper analyzes the regulation of comparative advertising by competition policy and, in particular, focuses on how such regulation affects the signaling role and the role for competition of comparative ads. We address a set of questions:

  1. What is the legal history of comparative advertising?
  2. What is the current legislation with respect to comparative advertising in the US and Europe?
  3. How have the courts interpreted the laws?
  4. How does comparative advertising affect market outcomes?
  5. In particular, what is the scope of information transmission of comparative advertising and how is it affected by competition policy?
  6. What should be kept in mind when designing competition policy?

Before answering these questions, we provide definitions of comparative advertising and document its importance as a marketing practice.

8.1.1 Definition of comparative advertising According to the Federal Trade Commission (FTC) in the US, “Comparative advertising is defined as advertising that compares alternative brands on objectively measurable attributes or price, and identifies the alternative brand by name, illustration or other distinctive information”. In the European Union, enactment of directive 97/55/EC concerning misleading and comparative advertising reads: “comparative advertising means any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor”. Comparative advertising can be classified according to whether it is direct or indirect.

8.1.2 History and Diffusion of comparative advertising Sectors most affected by rules on comparative advertising include food, retail, motoring and airlines. Famous examples of direct comparative ads involve Coke and Pepsi, Burger King and McDonald’s, Unilever and Procter and Gamble. Different studies suggest varying figures on the relative use of comparative advertising in the US. Muehling et al. (1990) find that around 40 percent of all advertising is comparative.                                           In most European Union countries comparative advertising is a quite young phenomenon, as we will see in the next section. We are not aware of any systematic study about its diffusion. Probably the lack of harmonization of comparative advertising rules among the European Countries, despite the Directive 97/55/EC, and the subsequent legal risks faced by the advertising firms still represents an obstacle for its diffusion. Also, since consumers have been less exposed to comparative advertising, advertisers may be more critical of its effectiveness in Europe.

8.1.3 Effectiveness of Comparative Ads: Apart from legal risks, a number of advertisers have been reluctant to use comparative because some long-term consequences of comparison advertising may be seriously detrimental to the advertising firm.
1. Potentially negative effect of comparison advertising is the misidentification of sponsoring brands: comparison ads might increase the salience of competing brand without improving consumer awareness of the brand sponsoring the message.
2. Important possible negative impact of comparison advertising concerns credibility: an ad for one brand might not be viewed by consumers as a highly credible source of information about competing brands because of a logical likelihood of manipulative intent.

8.1.4 Plan of the Chapter
Section 8.1 Introduction.
Section 8.2 explore the legal practice.
Section 8.3 Explore some economic perspectives on comparative advertising. In particular, we elaborate on the scope of information transmission of comparative advertising and on how it is influenced by competition policy.
Section 8.4 Present a number of legal cases.
Section 8.5 concludes.

8.2. Legislation and Legal Practice: This section we briefly discuss comparative advertising’s legal background. About the US and EU

8.2.1. Comparative advertising in the US: We discuss two interesting issues in disputes arising from comparative advertising: standards of substantiation and damages. Legislation in the US: In the US, federal advertising legislation is found in two major laws: the Federal Trade Commission Act and the Trademark (Lanham) Act. The Federal Trade Commission, when it was founded in 1914, had as its mission to protect businesses against unfair practices. In 1922 the Supreme Court ruled that the FTC has the right to regulate advertising. Specifically, this ruling allowed the FTC to regulate all aspects of false labelling and unfair methods of competition in advertising. Comparative advertising became an important issue in the 1960’’s and 1970’’s. Early on the FTC has emphasized that comparative advertising is a means to transmit information to consumers. In 1963 the FTC narrowed an order with respect to comparative advertising so as to allow firms to make “”truthful and non-deceptive statements that a product has certain desirable properties or qualities which a competing product or products do not possess. Such a comparison may have the effect of disparaging the competing product, but we know of no rule of law which prevents a seller from honestly informing the public of the advantages of its products as opposed to those of competing products.”” Legal practice: standards of substantiation: An important issue is whether the standards of substantiation are to be higher using comparative advertising compared to other forms of advertising which makes claims about product characteristics. The position of the FTC, as stated in 1979, reads: “On occasion, a higher standard of substantiation by advertisers using comparative advertising has been required by self-regulation entities. The Commission evaluates comparative advertising in the same manner as it evaluates all other advertising techniques. However, industry codes and interpretations that impose a higher standard of substantiation for comparative claims than for unilateral claims are inappropriate and should be revised. To make two important caveats here. (i) Since competitors can take actions against comparative claims and much less so against claims that are not comparative, the FTC statement of non-discrimination may not correspond to legal practice. (ii) The FTC statement becomes empty, if comparative advertising is the only means to communicate content about a product to consumers. This is the case if a competitor’’s product serves as a reference point for consumers because consumers do not have an understanding for absolute content statements. To state a cause of action for misleading advertisement under the Lanham Act, a plaintiff must establish the following:

1) the defendant has made false or misleading statements of fact concerning his own product or another’s
2) the statement actually or tends to deceive a substantial portion of the intended audience
3) the statement is material in that it will likely influence the deceived consumer’s purchasing decisions
4) the advertisements were introduced into interstate commerce
5) there is some causal link between the challenged statements and harm to the plaintiff.

Puffery can be used as a defense in Lanham Act false advertising cases. When such a defense succeeds, the court finding is that the claim in the ad is merely the seller’s opinion and therefore non-actionable puffery. The courts and regulatory agencies find an advertising claim to be mere puffery when it obviously is not material to reasonable potential customers. In other words the claim clearly reports the seller’s opinion and “no sensible man takes seriously”. We can distinguish between “puffery by exaggeration, bluster, boast or humor”. And “puffery by vagueness and/or seller’s opinion” as the ad “the most beautiful car on the market”. However, the world of puffery is quite small for comparative ads, as Pizza Hut v. Papa John’s exemplifies. This case is discussed in section 8.4. Also, comparative ads which may be defended as puffery may be ruled to violate trademark anti-dilution law. More than twenty States in the US have anti-dilution laws which sometimes are stricter than the corresponding federal law. Legal practice: damages: The Lanham Act allows plaintiffs to claim a number of damages: lost profits, corrective advertising expenses to help regain loss business, attorneys’’ fees, and punitive damages. Standards of proof for recovering damages for false advertising are high. In fact, to be entitled to damages, a plaintiff must show that consumers were actually deceived by the defendant’s false advertising and that there was a direct cause or connection between the alleged false advertising and the injury of the plaintiff.                                The law firm Arnold and Porter suggests that damages are so rare because of the perceived difficulty of proof. Other authors argue that the courts are sceptical towards comparative claims in litigations concerning trade mark infringement or malicious falsehood. In particular Swan (2000, page 4) reads: “”judges take the view that the public is neither gullible nor particularly trustful of advertising. Even if a cause of action is established, judges take some convincing that a comparative advertisement has caused any damage””.

8.2.2. Comparative advertising in the EU: Recent harmonization of the law on comparative advertising in the EU, then consider legal practice focusing on the UK. Finally the case of professional services is presented. Legislation in the EU: Until very recently, comparative advertising was essentially not allowed in European countries. The explicit identification of competitors had been banned in Belgium, Italy and Luxemburg. It was generally prohibited as unfair competition in Germany and France, unless advance notification was given to the competitor. Limited comparative advertising was permitted in Spain and the Netherlands. The use was restricted by the criteria of strict truthfulness and relevance in Scandinavia.                                            The UK had, compared with other Member States, a reputation of taking a rather relaxed approach. The European Union first addressed the issue of comparative advertising in the late 1970s. The position was that comparative advertising should be legal if it provides verifiable details and is neither misleading nor unfair. However, laws on comparative advertising were harmonized only in April 2000. “”The preamble of the directive indicates that for goods to flow freely throughout the EC, the rules governing the form and content of advertising must be uniform and notes that this currently is not the case with comparative advertising. The preamble emphasizes comparative advertising’s importance as a consumer decisionmaking tool and a stimulus of competition.”

Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met:

(a) it is not misleading ……;
(b) it compares goods or services meeting the same needs or intended for the same purpose;
(c) it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price;
(d) it does not create confusion in the market place between the advertiser and a competitor or between the advertiser’s trade marks, trade names, other distinguishing marks, goods or services and those of a competitor;
(e) it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor;
(f) for products with designation of origin, it relates in each case to products with the same designation;
(g) it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products10
(h) it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name. Legal practice: As we mentioned before, within the EU the UK has today a rather relaxed attitude towards comparative advertising. Nevertheless, to compare the legal approaches to comparative advertising characterizing European countries and the US it is useful to consider the UK as an example for an EU country. In both countries the interpretation by the courts is of particular importance because both, the UK and the US, have a common law legal system, where court cases provide precedent, i.e. these cases are used by other courts within the same jurisdiction when making decisions in comparable cases. Particular country study: UK: Before 1994 comparative advertising were prohibited in the UK because it amounted to trade mark infringement. Then, section 10(6) of the Trade Mark Act (TMA) permitted the use of another trademark for purpose of making a comparison within certain guidelines. As Berns Wright and Morgan (2002, page 14) put it:                                                                                                            “The TMA provides that trademarks must not be used other than in accordance with honest practice. The courts’’ test for honesty is an objective one. They ask: would a reasonable reader, accustomed to advertisings’’ use of hyperbole and even “knocking copy” 11, find the advertisement so biased or misleading to be dishonest? The comparison must be between products intended to meet the same needs or intended for the same purpose. The comparison must be material, relevant, representative, and verifiable.”                                                 Moreover, comparative advertising must not create confusion, nor creating the impression of a link between different trademarks. In the cases of alleged trademark infringement, the plaintiff, who is the trademark owner, has to prove that the use of the trademark is not honest. As a consequence, the comparison between the UK’’s and the US’’s attitude on comparison ad suggests for advertisers that since “The American approach of aggressive, vague, opinionated comparisons is not likely to meet the standards under the European Directive, US advertisers should begin to utilize a more benign approach to comparative communications if they desire to present the same campaigns in EU Member States.” Industry study: professional services in EU: It is interesting to note that the use of advertising in the market for professional services has traditionally been illegal in all industrialized countries. Today, where it is allowed, usually advertising is legal as long as it is not comparative However, it can be argued that such an advertising regulation for professional services seriously affects competition and is detrimental for consumers. The preamble of the Commission Communication of 9 February 2004 entitled “”Report on competition in Professional Services”” explicitly asks to regulatory authorities in the Member States and professional bodies to review the rules governing professional services because these rules are not necessary for the public interest and, thus, are unjustified.                                                                                                                      Analyzing the markets in which lawyers, notaries, accountants, architects, engineers and pharmacists operate in the European Union, the Commission has identified five main categories of national legislation or self-regulation that restrict competition: fixed prices, recommended prices, advertising restrictions, entry restrictions and reserved tasks and regulations governing business structure and multidisciplinary practices. The Commission believes that advertising, and in particular comparative advertising, can be a crucial competitive tool for new firms entering the market and for existing firms to launch new products.

8.3 Analysis of Selected Antitrust Cases: The cases analyzed attest to the problem of high legal risks faced by both the sponsoring and the target firm, due to ambiguities in the interpretation of the law. (to see Section 8.4)

8.3.1. Allegedly misleading comparative advertising: Several European and US cases have as a critical issue whether the comparison ad is indeed misleading. In the UK as well as in the US case law has evolved which provide interpretations of the law and thus additional guidance. As we mentioned in section 8.2, in the UK section 10(6) of the 1994 Trademark Act is relevant for the case analysis of comparative advertising. According to section 10(6) the use of a registered mark does not constitute copyright infringement if it is in accordance with honest practices in industrial and commercial matters. The term “honest practices in industrial and commercial matters” can be criticized as vague.

“The primary objective of the 1994 Act is to permit comparative advertising.
1. As long as the use of a competitor’s mark is honest, there is nothing wrong in telling the public of the relative merits of competing goods or services and using registered trade marks to identify them.
2. The onus is on the registered proprietor to show that the factors indicated in the proviso to s10(6) exist.
3. There will be no trade mark infringement unless the use of the registered mark is not in accordance with honest practices.
4. The test is objective: would a reasonable reader be likely to say, upon being given the full facts, that the advertisement is not honest?
5. Statutory or industry agreed codes of conduct are not a helpful guide as to whether an advertisement is honest for the purposes of s. 10(6). Honesty has to be gauged against what is reasonably to be expected by the relevant public of advertisements for the goods or services in issue.
6. It should be borne in mind that the general public are used to the ways of advertisers and expects hyperbole.
7. The 1994 Act does not impose on the courts an obligation to try and enforce through the back door of trade mark legislation a more puritanical standard than the general public would expect from advertising copy.
8. An advertisement which is significantly misleading is not honest for the purposes of s. 10(6).
9. The advertisement must be considered as a whole.
10. As a purpose of the 1994 Act is positively to permit comparative advertising, the court should not hold words used in the advertisement to be seriously misleading for interlocutory purposes unless on a fair reading of them in their context and against the background of the advertisement as a whole they can really be said to justify that description.
11. A minute textual examination is not something upon which the reasonable reader of an advertisement would embark.
12. The court should therefore not encourage a microscopic approach to the construction of a comparative advertisement on a motion for interlocutory relief.”

The judge gave a general evaluation about what constitutes misleading advertising. He comments on the testimonies as follows:          “For Ryanair the principal witness was Mr Jeans, its Sales and Marketing Director. …he wanted dramatically to convey the message that Ryanair was a lot cheaper than BA for what was broadly the same journey.” (British Airways plc v. Ryanair Limited, 8 December 2000,)                                                                                                The judge continues: “Before passing from the witnesses, it is particularly pertinent to observe that no witness testified to anyone actually being misled by either advertisement. There have been no complaints about deceptiveness in respect of any of the matters alleged made by members of the public or even by anyone independent in the trade. Complaints might have been made to either party, to the ASA or to any Trading Standards Officer in any Local Authority.”
BA had three complaints: (1) it found the Bastard headline offensive; (2) it said that the individual price comparisons were unfair; (3) and it said that in the case of Frankfurt and Dinard the destination comparisons were unfair. Ryanair also published price comparisons indicating the vast difference between the two airlines’ one-way fares.

–        Ryanair defended its campaign as in the case against British Airways. It argued that the ads were not misleading.

–        Both of these campaigns tried to establish RyanAir as a low-cost alternative to national “lag”carriers, BA in the UK and Sabena in Belgium.

–        The fact that Belgium did not allow comparative advertising until recently and that its court appeared to be tougher on RyanAir allows for a number of alternative interpretations.

–        While the Belgian case highlights the high hurdle for comparative advertising in parts of continental Europe, standards for “honest” comparative advertising appear to be lower in other places

–        The courts in the US distinguish between establishment (or tests prove) claims and nonestablishment claims. In cases with non-establishment claims the plaintiff has to prove that the advertising is false.

8.3.2 Superiority or Puffery: Next two cases go one step further. In those cases it is not obvious whether the ad merely contains puffery or whether the claim can transmit some information to consumers. In 2000 a federal judge ruled that Papa John’s must pay over $468,000 in damages to Pizza Hut and cease and desist from using its tag line “Better ingredients. Better pizza.” The judge ruled in favor of Pizza Hut, as the ingredient comparison was misleading.                                                                                                                                           A recent case in a Dutch court suggests that comparative advertising with questionable superiority claims may survive European courts. In April 2004 a civil court in Utrecht, Netherlands, has ruled on a case concerning razor manufacturers Gillette and Wilkinson. The court decided that both can claim that their most recent bladed razors are the best. Gillette launched a complaint before the court because Wilkinson had advertised its new 4 bladed razor saying that it produces the smoothest result and that it had carried out comparative tests, showing that it was even better than Gillette’s 3- bladed one. Gillette sued Wilkinson claiming that this was misleading advertising.                                                                                                                                         A case in point is S.C. Johnson v. The Corox Co., 241 F.3d 232 (2nd Cir. 2001). In this case, Clorox, the maker of Glad-Lock storage bags, ran television that featured a comparative ad of Glad storage bags versus Ziploc storage bags. Both of them were filled with water and turned upside down. In the advertisement the Glad-Lock bags stayed watertight while the Ziploc bags leaked profusely. An animated goldfishin in the Ziploc bag was shown in a state of distress. To prove that the ads were misleading, S.C.

8.3.3 Damages: In last case we consider damages. The most famous case of punitive damages in the US is the U-Haul International Inc. v. Jartran, Inc., 793 F.2d 1034 (9th Cir. 1986). The court found Jartran of wilful and malicious false advertising after running a comparative advertising campaign run for more than a year. As the basis of the $40 million judgement served $6,4 million to cover the cost of the false advertising campaign and $13,6 million to air corrective advertising. Under Section 35 of the Lanham Act, the court doubled the award to a total of $40 million.. In this case awarding the defendant’ profit was justified to avoid the defendant’ unjust enrichment, as first established by the 2d Circuit in 1984 for a case of false advertising .

8.4. Economic Perspectives on Comparative Advertising

8.4.1. Views Perspectives on Comparative Advertising: It is useful to distinguish between different types of advertising: persuasive advertising, advertising as a complement, directly informative advertising, and indirectly informative advertising. Comparative advertising may be of any of these types. Under persuasive advertising, advertising changes the preferences of consumers. In the case of comparative advertising it may do so in two ways, it may increase the willingness-to-pay for the sponsoring brand and it may reduce the willingness-to-pay for the compared brand. Comparative advertising may also be seen as a complement if consumers derive benefits from consuming the advertising together with the product of the sponsoring brand. Comparative advertising can be considered content-based because it makes a comparison or a “”superiority claim””. In fact, implicitly or explicitly, in every comparative ad either the message “my product is better than ……” or “my product is as good as ……” is contained. Thus, a comparison ad is always potentially directly informative.

As we will see in this section, comparative advertising can also transmit some information indirectly.
1. The cost of the advertising campaign, as in the case of generic content-free ads, can indirectly transmit some information to consumers.
2. Channel to indirectly convey information which operates through the competitor’s reaction that a comparative ad potentially induces.

8.4.2. Persuasive Advertising: In many industries with branded consumer goods, the branded good is sold in a vertically integrated structure or the manufacturer essentially controls the downstream pricing. In these cases it is appropriate not to model any retailers or intermediaries and to postulate that manufacturers sell directly to consumers. In such a setting, Aluf and Shy (2001) present a duopoly model of persuasive advertising in which advertising by one firm reduces the willingness-to-pay for the competitor’s product; this may correspond to negative comparative advertising. Advertising is assumed to increase the heterogeneity among consumers and thus product differentiation. Consequently, firms use “comparative” advertising as a product differentiation strategy, which reduces price competition.                                                                                                                                In these papers with persuasive advertising it is implicitly assumed that comparative advertising affects consumers’ valuation differently than non-comparative advertising. This reflects the view that consumers can make relative judgments but that they often find it hard to interpret information without a reference point. These analyses apply to products that are well established so that their qualities are known. Nevertheless, advertising changes consumers’’ preferences.

8.4.3. Directly Informative Advertising Comparative Price Advertising: Perhaps the most obvious case of comparative advertising is comparative price advertising. In fact, claims about price are easily verifiable perhaps they represent the simplest type of direct information, as holds more generally for search good attributes. For this reason, In the Report from the Commission to the Council and the European Parliament on Consumer Complaints in Respect of Distance Selling and Comparative Advertising it is written: “Complaints from competitors refer to comparative advertising considered misleading and/or unfair. The complaints relate to comparisons based on price or price-levels. Complaints regarding comparisons in terms of quality are rarer, however.”                                                           Note that in its pure form comparative price advertising means that consumers are aware before the advertising is placed that products are the same (or comparable) and that they only lack price information. In this case, a comparison ad allows consumers to avoid costly search or if they were not going to search, to purchase the good at a lower price in expected terms. More price information is generally thought to intensify competition, which further reduces the expected price consumers pay. However, often the price comparison comes with a low-price guarantee. As is well-known in the literature on price-matching policies, such policies can lead to collusive outcomes, which is clearly detrimental to consumer welfare and, typically, also total welfare. Comparative Advertising of Product Characteristics: In new product markets, consumers often do not know the quality or other product characteristics of entering firms. In such cases, comparative advertising may be a useful strategy to transmit information to consumers. Advertising in general may be a tool to make consumers aware of a certain product (e.g. as modeled in Grossman and Shapiro, 1984). Comparative advertising can, in addition, establish a product in a certain segment of the market. For instance, to compete against an up-market car such as a BMW a car manufacturer has to position its own car as being comparable in certain product characteristics to cars in the targeted segment. In this case comparative advertising is simply directly informative advertising about availability and potentially product characteristics. When the claim in a comparative advertising is easily verifiable and deviations from the truth are severely punished, a firm never misleads consumers. As a consequence we can assume that comparative claims are truthful and, thus, directly informative. Similar to the case with persuasive advertising, it is conceivable that also directly informative comparative advertising relaxes price competition. Suppose that consumers do not observe the product characteristics and that firms may via truthful comparative advertising highlight the superiority of their product along certain dimensions. To illustrate this point, we consider a simple symmetric setting in which the firms’’ products can be positioned either at 0 or 1 and consumers have different evaluations for products at these two points. That is, consider a simple Hotelling specification of the market. In the linear Hotelling version with disutility parameter t a consumer has an expected disutility of t/2 for each product if the probability for each configuration 0 or 1 is 1/2. Products of the two firms are ex ante identical so that price competition between the two firms is intense.

8.4.4. Indirectly Imformative Comparative Advertising: When comparative claims are directly informative, firms spends in the advertising campaign the minimum amount needed to transmit the desired information to consumers. However, when the claim in the ad is difficult to verify, in particular, when it contains a quality comparison, it seems important to consider how a manufacturer endogenously decides whether to use a truthful comparative claim or not, and how to spend for it, given the antitrust law and the way such a law is implemented.                                                       Suppose an established and a new firm operate in a market. Consumers do not know the product quality of the new firm, whereas both firms do. The entrant’s quality is either high (H) or low (L). Producing high quality leads to fixed costs F, producing low quality leads to zero fixed costs, while variable costs are zero for both qualities. Without loss of generality, it is assumed that this quality is high. Profits of the established firm depend on its own quality (always H) and consumer beliefs about the product quality of the new firm qe.

ΠI(qe)-High quality of the established firm its reduced profits                                                                 qE -Quality of the established firm profits of the new firm depend on its true quality                                                qe – perceived quality.                                                                                                                        ΠE(qe,q)-Reduced profits                                                                                                  Note in particular that ΠE(qe,H) = ΠE( qe,L) – F. The established firm’s profits are decreasing in the competitor’s perceived quality. In particular, ΠI(L) > ΠI(H). The new firm makes higher profits the higher its perceived quality. In particular, ΠE(H,q) > ΠE(L,q).                                                                              First stage: the product quality of the new firm is exogenously determined (the quality is H with probability 1/2, and L with probability 1/2).                                                                                                   Second stage: the entrant decides among the set of advertising types {c,g,n}, namely comparative, generic, or no advertising respectively. Associated costs are Ac, Ag and 0, respectively. We assume, for simplicity, that after choosing g or c the advertising cost is unavoidable and can only take a given value Ac = Ag = A;                              Stage 3, provided that the new firm has used comparative advertising, the established firm decides whether to go to court, paying legal costs C. The court verifies the quality of the new firm and thus whether its claim was justified. If it was not justified the new firm has to pay damages D. At the last stage, consumers observe the decisions on stages 2 to 3 but not the realization of quality at stage 1, and update their beliefs concerning the product quality of the new firm based on the observed actions in stages 2 and 3. Then they make their purchasing decisions.                                                                                                                                          To have a meaningful analysis, suppose that the new firm gains from generic advertising if this makes consumers believe in high quality, ΠE(H,q) –A > ΠE(L,q).                                                                                           This can be seen as follows. At a potential separating equilibrium with generic advertising, an entrant firm with low quality type does not use advertising, that is, the decision at stage 2 is n, whereas an entrant firm with high quality type chooses generic advertising g and forcibly pays A. The separation constraint for the low type is ΠE(L,L) ≥ ΠE(H,L) –A. For the high type it is ΠE(L,H) ≤ ΠE(H,H) –A. Therefore, a separating equilibrium could exist only if the interior of the interval for A given by ΠE(H,L) –Ö  ΠE(L,L) ≤ A ≤ ΠE(H,H) –ΠE(L,H) was not empty, which is impossible considering that the assumption on the cost of quality implies ΠE (qe,H) = ΠE (qe,L) –.                                                                                                                                 Does comparative advertising suffer the same fate? Not necessarily. Suppose that using comparative advertising (choosing c at stage 2) makes consumers believe in high quality unless the court verdict contradicts the advertising claims. The separating constraint for a high type entrant is again ΠE(H,H) –A > ΠE(L,H). Suppose furthermore that the established firm makes higher profits unmasking its competitor to be of low quality and receiving damages than it would make under high quality beliefs, namely ΠI(L) –C + D > ΠI(H). When the incumbent reacts to a false claim, the separating constraint for an entrant of type L is ΠE(L,L) – –D ≤ ΠE(L,L), which is trivially satisfied. Since ΠI(L) > ΠI(H) holds by assumption, a separating equilibrium with comparative advertising necessarily exists if D > C and for sufficiently low cost of advertising, namely for ΠE(H,H) –ΠE(L,H) > A. This is the only possible separating perfect Bayesian equilibrium. Note that the damages may even be zero, D = 0, and the argument may still hold.                                                                                                      Alternatively, suppose that consumers do not observe the court action but only the choice of the advertising type at the second stage. It can be easily show that, comparative advertising solves the adverse selection problem verifying the self-selection constraints if and only if D > C.                                     From the analysis above follow a number of observations. First, comparative advertising may be an effective way to transmit information to consumers under circumstances under which generic advertising cannot serve as a signal of product quality. Second, the amount of damages needed to punish deceptive advertising depends on the speed of information acquisition by consumers.                                                     The general idea behind the example is that comparative advertising triggers strategic interaction between informed parties. This interaction allows the uniformed party (consumers) to infer about the realization of an unobservable variable (product quality). There are two channels through which the incumbent’s strategy may help the entrant. First, the choice of comparative advertising is interpreted by consumers as a stronger signal than generic because it would lead to legal action and payment of damages in case of cheating. Further, the observation of the informed incumbent not reacting to comparative claims is interpretable as good news about the entrant’s quality. As stated above, the first channel may operate with or without the second. Barigozzi, Garella, and Peitz (2003) provide a detailed analysis of a much richer model. Here firms receive a noisy signal about the entrant’ product quality.                                                                                                                       Then two situations can arise depending on the information of the competitor.                              First, if both firms have access to the same information, the competitor may sue regardless of the information it possesses given that there is always some chance that the court will rule the advertising claim to be wrong. If this is sufficiently likely and the competitor’ benefit associated to go to court are sufficiently high, it is clearly in the interest of the competitor to take this action.         Second, if the competitor has access to different sources of information than the sponsoring firm and if this information tells that the claim is false, it will go to court even if the benefit associated to this action is modest. In these cases, litigation is not only costly for the parties involved but often adds a social cost if the cost generated by the case on the court system is not fully covered by the two involved parties, the sponsoring firm and its competitor.                                                                                                                                           In fact in their opinion consumers find it difficult to assess information about professional services and therefore need particular protection from misleading or manipulative claims. It is true that generic dissipative advertising cannot be, in this case, a channel of indirectly transmitting information because information is not ex-post verifiable. Anyway, the second channel of indirect information, that is, the exposition to the competitor’ reaction is still present with credence goods, provided that also competitors and the courts can become experts. This may enable a firm to transmit some information to consumers. Hence, we have provided a theoretical argument in support of the use of comparative advertising for professional services.

8.5. Conclusion: Antitrust authorities encourage the use of comparative advertising because, if fair and not misleading, it conveys useful information to consumers and can increase competition in the market place. The way advertising affects consumers’ behavior is a on-going topic in the economics and marketing literature.. The aspect of comparative advertising most relevant for antitrust authorities is its role in transmitting information to consumers. This is related to the important issue of how information can be transmitted by an “interested party” to another economic agent and rises the problem of credibility. There is an important difference between content-free generic advertising and comparative advertising: the latter contains a “uperiority claim” which potentially induces the reaction of the competing firms. Competitors mentioned in the ad decide whether to challenge the superiority claim by engaging in a lawsuit.                                                                                                When the claim in the ad is difficult to verify, advertising firms endogenously decide whether to use truthful or false statements. In this case and as showed in Barigozzi, Garella and Peitz (2003), together with the cost of the advertising campaign, the potential reaction of the competitor can provide an efficient channel to indirectly 32 transmit information to consumers.                                                                                                            In fact, when running a false advertising campaign, the firm will be prosecuted and condemned. This represents a mimicking cost and slacks the incentive constraint for the advertising firm. Thus, by using (dissipative) comparative advertising, signaling can be obtained at a lower cost. The signaling role of comparative advertising is particularly important when the advertising claim in based on quality characteristics that consumers cannot verify before they purchase the good. Thus, comparative quality claims can be indirectly informative for consumers if false ads are punished, that is if the legal system works properly.                                                                From Barigozzi, Garella and Peitz (2003) a second interesting lesson can be drawn: competition policies, antitrust laws and their implementation are essential in making a comparative advertising campaign credible. This is important because only if claims are credible, comparative advertising can convey some useful information to consumers. In other words, comparative ads can increase competition among firms and retailers only if claims are credible and claims are credible only if the legal system is efficient in processing false claims. If firms diffusing misleading ads are not punished, all claims become empty: comparative claims which are defined non actionable “mere puffery” becomes equivalent to generic ad and are not informative.                                 The way consumers interpret advertising is important for the court, as “implying falsity” claims prove. But, at the same time, consumers’ perception is influenced by the legal practice, that is consumers learn to interpret comparative claim observing the outcome of existing litigations. In this sense legal practice deeply affects the way comparative advertising is used by firms and understood by consumers. Thus, a more restrictive legal attitude towards comparative claim, as we find in Europe can perhaps better improve competition than in the US because it contributes more to the credibility of comparative advertising.                                                              However, if consumers are sophisticated enough such that they distinguish between comparative advertising containing puffery, which cannot be sanctioned, and other comparative advertising claims, which can be sanctioned, also the legal attitude in the US does not interfere with the flow of information from firms to consumers.


Хариу Үлдээх

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