Article 8 of the Regulation on Commercial Advertisement and Unfair Commercial Practices ("Regulation") permits comparative advertisements under specific conditions. Subparagraph (a) 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." Additionally, Article 9, titled "Burden of Proof," specifies that the advertiser bears the burden of proof for claims made in comparative advertisements. These claims must be supported by relevant information and documents from university departments or accredited independent research institutions and be valid as of the advertisement's airing.
In its meeting on June 11, 2024 and numbered 346, the Advertisement Board ("Board") made a decision regarding the substantiation of comparative advertisements. The promotions in question claimed "Türkiye's most recommended e-commerce brand" based on an online survey of 21,600 participants conducted by an independent research company from January to December 2023.
While the Board acknowledged the submission of the research report as aligning with Article 9 of the Regulation, it found that the study did not adequately support the claim that "Whole Türkiye recommends." Additionally, the Board reviewed the advertiser's social media promotions featuring claims like "Türkiye's number one, No. 1," noting that these did not reference the survey and failed to connect the claims of being "No. 1" and "the most recommended." As a result, the Board found the claims misleading for average consumers and decided to impose an administrative fine against the advertiser and to suspend the advertisements.
The Board's decision was based on the reasoning that the research conducted with 21,600 participants did not encompass all of Turkey or the wide variety of services offered by the advertiser's e-commerce company. Considering that the claim of being "the most recommended" could pertain to a range of conveniences and advantages provided by e-commerce platforms, it is evident that this claim alone is insufficient to directly substantiate the "No. 1" claim.
Although the Court of Cassation holds the view that exaggerated statements may be used in advertisements and that the use of such statements does not render advertisements directly misleading[1], the expressions used in the promotions in question are not merely exaggerated but are based on unsubstantiated data, which may be deemed misleading to consumers. The Board carefully reviewed the scope of e-commerce services, the presentation of the advertisements, and the research content needed to meet the burden of proof, ultimately making an appropriate decision. We believe this interpretation aligns with the legal regulations for substantiating claims in comparative advertisements.
Terms such as "best," "first," "only," and "number one" are frequently used in advertisements to imply superiority over competitors. According to the Regulation, for such advertisements to be lawful, they must be substantiated. In its recent decisions[2], the Advertisement Board evaluates the perspective of consumers regarding superiority claims and comparison, and the Board may expect that the research presented for substantiation includes all competing firms or their products and services.
[1] The decision of the 11th Civil Chamber of the Court of Cassation, dated 19.04.2017 and numbered 2015/14421 E. 2017/2252 K.
[2] The Advertisement Board, in its Press Release dated 09.07.2024 and numbered 347, with File No: 2024/4230.
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