Comparative Advertising in Australia: What’s Legal and What’s Not

Comparative advertising can be a powerful way to stand out. If you can show your product is cheaper, faster or more durable than a competitor’s, it gives customers a clear reason to choose you.

But there’s a catch. In Australia, comparative claims are tightly regulated. Get it wrong and you could face complaints, regulatory action and brand damage.

The good news? With the right approach, you can run compelling comparative ads that stay on the right side of the law. In this guide, we’ll explain how comparative advertising works under Australian law, the risks to avoid, and the practical steps to launch campaigns that are competitive and compliant.

What Is Comparative Advertising (And Why Use It)?

Comparative advertising is any marketing that explicitly or implicitly compares your product or service with a competitor’s. The comparison could be on price, features, quality, performance, sustainability, or customer satisfaction.

Done well, comparative ads can:

• Clarify your value proposition quickly
• Help new brands compete with established players
• Make price or feature differences more tangible for buyers
• Prompt consumers to switch providers

However, the same qualities that make comparative ads effective also make them risky. You’re naming (or clearly indicating) a rival and asserting your offer is better. That means every word, number and visual needs to be truthful, accurate and appropriately qualified.

Is Comparative Advertising Legal In Australia?

Yes, comparative advertising is legal in Australia, provided it complies with the Australian Consumer Law (ACL) and intellectual property laws. Businesses often get into trouble not because they compared, but because the comparison was inaccurate, misleading or unfair.

The most common pitfalls include:

• Misstating a competitor’s price or specs
• Cherry-picking non-representative data or out-of-date information
• Using a competitor’s logo or brand assets in a way that infringes their trade mark
• Using headlines that overstate the claim, with clarifications buried in fine print

Before you go live, make sure your claims are correct, up to date, and backed by evidence. If you’re working with an agency or influencer, set clear rules about what can be said and how comparisons must be substantiated.

The Rules You Must Follow Under The ACL

The ACL sets the baseline for all advertising in Australia, including head-to-head comparisons. Three obligations are especially important.

1) Don’t Mislead Or Deceive (Section 18)

Section 18 prohibits conduct that is misleading or deceptive, or likely to mislead or deceive. That includes headlines, body copy, charts, images and even silence (for example, leaving out a critical qualification).

Comparative ads often push the line, so sanity-check your whole message, not just the small print. If the overall impression could mislead an ordinary consumer, it’s a problem even if each sentence is technically true. For a deeper dive, see how section 18 works alongside the general test for misleading or deceptive conduct.

2) Avoid False Or Misleading Representations (Section 29)

Section 29 lists specific types of false or misleading representations, such as those about price, quality, performance characteristics, or testimonials. Comparative claims frequently fall into these categories.

If you say “50% cheaper than Brand X”, the number must be objectively accurate at the time of the ad, for the products compared, including any fees or conditions that materially affect the price. Learn what’s covered under section 29 before signing off on price or performance claims.

3) Be Careful With Price Comparisons

Price is the most common basis for comparison. Make sure you’re comparing like-for-like products and including compulsory fees. If your price is promotional or time-limited, say so clearly. If the competitor’s price varies by region or channel, be transparent about what you used.

The ACCC scrutinises “was/now” and “save” claims closely. Disclose any material conditions in a prominent, clear way. For more on pricing obligations, look at Australia’s advertised price laws.

What About Disclaimers And Qualifications?

Disclaimers can help clarify the scope of a claim, but they cannot fix a misleading headline. If the headline overreaches and the truth is hidden in tiny footnotes, the ad may still breach the ACL. Keep key qualifications close to the claim, in plain language, and sufficiently prominent on all formats (web, mobile, social, print).

Substantiation: Have Your Evidence Ready

You should have evidence on file to back every comparative statement (pricing screenshots with timestamps, independent test reports, or customer research data). The ACCC can issue a substantiation notice requiring you to produce the evidence quickly, so keep records organised and current.

IP And Brand Risks To Watch

Comparative advertising sits at the junction of consumer law and intellectual property. Even if your claims are accurate, how you present a competitor’s brand matters.

Trade Marks And Passing Off

You can reference a competitor’s brand name to identify the product you are comparing, but avoid using their logo or trade dress unless it’s strictly necessary and does not imply endorsement or affiliation. Using a rival’s brand assets prominently can raise trade mark infringement or “passing off” issues by suggesting a commercial connection that doesn’t exist.

Protect your own brand early. Registering your brand name and logo as a trade mark strengthens your position and deters competitors from using your assets in their ads. You can start with a professional application to register your trade mark.

Copyright In Creative Assets

Don’t lift a competitor’s product photos, diagrams or copy. Even if your comparison is lawful, copying their creative work can breach copyright. Create your own images and graphics or obtain the appropriate licences. If an agency is preparing assets, make sure your contract requires original work or proper licences.

Defamation And Reputational Harm

Comparative ads should focus on objective attributes. Avoid language that implies dishonesty, incompetence or other reputational slurs. Even if you believe your statement is accurate, exaggeration or editorial spin can create unnecessary legal risk and distract from your core message.

How To Run Comparative Ads The Right Way (Step-By-Step)

Here’s a practical framework you can use to plan and approve compliant comparative campaigns.

Step 1: Define A Clear, Apples-To-Apples Claim

Decide exactly what you’re comparing: model, size, pack count, plan inclusions, contract term, delivery, and any mandatory fees. The comparison should reflect how a reasonable customer would shop and decide.

Step 2: Gather And Timestamp Your Evidence

Collect source documents for every fact you’ll state: screenshots of competitor pricing (with dates and locations), technical specifications, independent lab results, or validated survey data. Store these in a structured folder so you can produce them quickly if asked.

Step 3: Draft With The “Overall Impression” In Mind

Write headlines, body copy and CTAs that match the evidence. Don’t let design or placement create a stronger impression than your data supports. Keep key qualifications near the claim and use plain English.

Step 4: Stress-Test The Ad For Misleading Risks

Ask: Would a typical customer reading this quickly on mobile take away a message that’s broader than the evidence? If so, refine the wording or improve prominence of qualifications.

Step 5: Check Pricing And Availability Details

Confirm the competitor pricing you relied on is current as at a specific date, and note any regional or channel variations. If your price is conditional (e.g. direct debit only, introductory period), say it clearly beside the claim.

Step 6: Review IP Use And Brand Presentation

Limit any use of a competitor’s marks to what’s reasonably necessary to identify the product. Avoid logos unless essential. Ensure your design doesn’t mimic their get-up. Registering your own branding helps prevent reciprocal misuse-consider a trade mark strategy early.

Step 7: Approve Through A Legal Checklist

Run your final assets through an internal checklist tied to the ACL, pricing rules and IP. This is a good moment to involve legal support-our team routinely assists with pre-publication reviews to reduce risk without dulling the creative edge.

Step 8: Keep Records And Monitor

File final creatives, approvals, and all substantiation. Set reminders to re-check competitor data for longer-running campaigns. If a competitor changes their price or features, update or sunset the ad promptly.

Online Marketing And Privacy Considerations

If you’re distributing comparative content by email, SMS or social advertising, remember your broader marketing obligations.

Spam And Email Rules

If you’re building a list for campaign distribution, ensure consent, identification and unsubscribe mechanisms comply with Australian spam rules. Our guide to email marketing laws covers the essentials for small businesses.

Privacy And Data Collection

If your comparative ad drives to a landing page that collects personal information (names, emails, preferences), you’ll need a clear Privacy Policy explaining what you collect and how you use it. This is also important for retargeting and analytics tools on your website.

Influencers And Ambassadors

If you engage creators to make comparative content, confirm they will state claims exactly as approved and include required disclosures (e.g., “paid partnership”). Set these expectations in writing using an Influencer Agreement or Brand Ambassador Agreement, with a clear sign-off process for scripts and captions.

What Contracts And Documents Help Manage Risk?

The right paperwork won’t replace compliance, but it will help you control messaging, protect your brand and resolve issues quickly.

• Marketing Service Agreement: If you use an agency, set obligations around accuracy, approvals, IP ownership and indemnities for non-compliant claims.
• Influencer Agreement or Brand Ambassador Agreement: Controls scripts, disclosure, approvals and take-down rights for creator content, especially when comparisons are made.
• Website Terms & Conditions: Set rules for site use, disclaimers and intellectual property notices for pages hosting your comparative claims.
• Privacy Policy: Explains how you handle customer data captured via landing pages, forms and remarketing pixels. You can implement a legally robust Privacy Policy as your data strategy grows.
• Trade Mark Registration: Protect the brand you’re promoting so rivals can’t ride your goodwill. Start with an application to register your trade mark.
• Copyright Licence Or Assignment: Ensure you own or have rights to all campaign assets, especially infographics and product imagery used in comparisons.

If you sell online or publish comparisons on a product page, include robust Website Terms & Conditions so the rules of your platform are clear and enforceable.

Common Mistakes (And How To Avoid Them)

• Comparing “unlike” products: Define the comparison scope in plain language and verify that products are equivalent (size, inclusions, term, delivery).
• Relying on old data: Date-stamp your evidence and set a review cadence for long-running ads.
• Overpromising in the headline: Ensure the headline matches the proof; don’t rely on tiny footnotes to qualify a bold promise.
• Sloppy price calculations: Include all mandatory fees and conditions, and follow Australia’s advertised price laws to the letter.
• Using competitor logos casually: Keep references to brand names minimal and necessary; avoid logos unless there’s a clear, lawful reason.
• No paper trail: Store your substantiation, approvals and evidence-if the ACCC asks, you need to produce it fast.
• Unclear team or influencer roles: Lock in responsibilities and approvals in your contracts to stop unvetted claims from going public.

Where Comparative Ads Meet The ACL: A Quick Checklist

• Sense-check the entire impression of your ad under section 18: would an ordinary customer take away something your evidence doesn’t support?
• Confirm every price, performance or feature statement isn’t a prohibited representation under section 29.
• Keep your supporting proof organised to respond to substantiation notices quickly.
• Review any promotional emails or landing pages for compliance with email marketing laws and your Privacy Policy.
• Protect your own brand assets to deter misuse, and avoid infringing competitors’ trade marks or copyright.
• Align in-house, agency and influencer workflows to prevent last-minute changes that create legal risk.

Key Takeaways

• Comparative advertising is legal in Australia, but every claim must be truthful, current and properly qualified.
• The ACL’s core rules on misleading conduct and false representations apply to the overall impression of your ad, not just the fine print.
• Price comparisons demand like-for-like analysis and transparency about fees and conditions.
• Manage IP risk by limiting use of competitor marks and protecting your own brand with trade mark registration.
• Use strong contracts and clear approvals with agencies and influencers to keep messaging compliant.
• Maintain a substantiation file for all claims and monitor campaigns so content stays accurate over time.

If you’d like a consultation on planning or reviewing comparative advertising for your small business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.