Potato wars and comparative advertising

Last week Kenya’s social media was alight after an international restaurant franchise made an announcement that it could not supply its popularries due to a potato shortage. It was later reported on social media that the shortage was because the restaurant franchise imports potatoes used to make the fries.

The irony according to many comments on social media was that Kenya is a leading potato grower and in fact exports the product to other countries. It was therefore lost to many as to why the restaurant opted to instead import potatoes when the same were locally available.

Among those who poked fun at the situation were the franchise’s competitors. Some creative competitors leveraged on this situation to position their restaurants and potato fries as better because they sourced potatoes locally.

It is obvious that this is an emotive statement. Sourcing locally grown products as opposed to importing the same products has an impact on the brand reputation of any business. A business that is deemed to be supporting local products may have a better brand reputation in the public eye.

The advertisements by the franchise’s competitors may have been made innocently but could have an effect on brand reputation. Such advertisements are known as comparative advertising.

Comparative advertising happens where a product/service mentions a competitor’s name or insinuates the competitor’s identity but the advertisement’s main goal is to show the consumer that the advertiser’s products are superior to the competitor’s.

While comparative advertising is creative and entertaining, it flouts several laws. In Kenya, comparative advertising flouts the competition and consumer as well as advertising laws. There has been case law in Kenya over comparative advertising.

Comparative advertising especially where it is false or unsubstantiated can be very damaging to brand reputation. For comparative advertising to stand, the advertiser must establish the truth in his allegations.

This has to be backed by independent research. In the case at hand, has the advertiser produced evidence to demonstrate that locally sourced potatoes produce fries of a higher quality? If not, then these advertisements may fall short of the law.

The policy in Kenya is to encourage fair competition. Meaning that in as much as competition is encouraged it has to be fair. Most actions constituting unfair competition are illegal. One of them under the Competition Act is false advertising.

Under Section 55 of the Competition Act, false advertising is illegal. Comparative advertisements, therefore, have to contain truth and not just be bare averments as to the quality of the product. For example, saying, “our fries are the best in Kenya” without substantiating that with truth is actionable if it damages your competitor.

In a Kenyan case, Unilever that manufactures washing detergent Omo took its competitor Proctor & Gamble the maker of Ariel to court over an advertisement. The gist of the suit was regarding Ariel's one wash campaign.

According to the manufacturers of Omo, the advertisement insinuated that the detergent is not able to remove stubborn stains in just one wash.

According to them, no research had been provided by Ariel to support its one wash campaign. Unilever sought orders stopping the advertisement. The court granted an injunction and referred the suit back to a tribunal.

Given the statutory law provisions and case law, then my recommendation is that marketing departments should be trained on the acceptable advertising standards to avoid exposing the business to legal risk.

Every advertisement should be weighed to make sure it is truthful and is not deceitful to the consumer. Other than breaching competition law a false comparative advertisement is against consumer law.