The Court of Appeal allowed Dunnes Stores’ appeal against findings that its 2013 in-store price comparison campaign breached Irish rules on comparative advertising and misleading commercial practices. It held that the High Court had applied the wrong legal approach to 15 product labels and the campaign’s other shelf-edge labels. The court left open whether Aldi’s challenge to those comparisons should be retried.
The campaign ran from June to August 2013. Its shelf-edge labels stated Dunnes’ prices alongside Aldi prices for 262 products. The High Court had found that differences in 14 of 15 products examined in detail made the comparisons unlawful. It also found the other labels unlawful, citing their lack of specific identification of Aldi products and slogans including “Always Better Value” and “Guaranteed Lower Prices”. A separate part of the campaign used banners and floor stands.
The Court of Appeal said the High Court had wrongly treated the requirement to compare material, relevant, verifiable and representative features as part of the test for whether products could be compared. The court said products could be compared if they met the same needs or were intended for the same purpose; they did not have to be identical. A price-only comparison could be allowed, subject to the rules against misleading advertising and commercial practices.
The appeal court therefore set aside the High Court’s findings concerning the 15 labels and the labels generally. It said the High Court had not adequately assessed whether those advertisements misled consumers under the applicable statutory tests. The appeal court did not decide that the labels complied with those rules; it said their lawfulness had not been evaluated using the correct approach.
The court reached a different conclusion about the banners. It held they did not actually compare specific goods or prices and so did not qualify as comparative advertising protected by the regulations. It replaced the High Court’s decision on the banners with a declaration that they were not permitted. However, given Dunnes’ substantial success on appeal, it said the injunction ordered by the High Court should be set aside, despite the banners’ unlawfulness.
The appeal court did not finally determine what should happen next with Aldi’s challenge to the 15 product comparisons and the wider shelf-edge labels. It said it would hear further submissions from the parties on whether those issues should return to the High Court for retrial.