Price comparison advertising: reference date, basket and evidence

Section 2a UWG covers comparative advertising where a competitor, or its goods or services, is directly or indirectly identifiable. A price comparison therefore does not always have to name the competitor. If the selection, market or wording identifies a provider, the rules for comparative advertising apply.

The comparison must concern goods or services that meet the same needs or serve the same purpose. A household basket should not be compared with a differently composed specialist offer without explaining the differences. Delivery scope, service, contract commitment and availability may also determine whether the offers are comparable.

Section 2 UWG adds the assessment of the specific price statement. A number may be correct and still communicate a misleading advantage if the basket is selective, the reference date is unsuitable or an important price component is omitted. The firm’s general Austrian comparative advertising article explains the wider structure.

The reference date should show when the prices were collected. With daily price changes, “in August” may be inadequate if the resulting claim sounds timeless or current. For each offer, retain the date, time or at least a narrow collection window and the source.

A single low-price day may support a narrowly framed statement, but it does not automatically support “always cheaper” or “the cheapest basket”. The broader the claim, the broader and more current the data should be. A limited test must not be presented as a permanent market comparison.

Recurring advertising needs an update rule. Prices, promotions, delivery regions and product ranges change. Define when the basket is collected again, which deviation triggers a new review and when an old version must be withdrawn.

A basket must reflect the claim being advertised. A “typical weekly shop” should use products and quantities selected under a traceable rule. A basket made only of particularly cheap own-brand products cannot automatically support a general claim about the whole range.

The selection must not be adjusted silently to produce the desired result. Record product group, brand or quality level, pack size, quantity, availability and substitution rule. If one provider lacks a product, the cheapest replacement is not automatically comparable. The substitution method should be set in advance and applied consistently.

Representativeness does not mean that every possible product must be included. It means that the selection must not skew the claim unfairly. “Cheaper for these ten products” requires a different basis from “our entire shopping basket is cheaper”.

The comparison should reflect what a customer actually has to pay for the selected offer. VAT, delivery charges, service fees, deposits, minimum order values, voucher codes or memberships may matter. If only one provider’s components are included, the final amounts are not calculated on an equal basis.

Units can also change the result. A six-pack is not automatically comparable with a four-pack. Kilogram or litre comparisons require the same unit, quality, specification and availability. A basket must not look cheaper because pack sizes differ silently.

Take care with personalised prices and vouchers. A price available only to registered members or a small target group is not automatically a general comparison price. The access condition belongs in the evidence file and, where material to the overall impression, in the advertisement.

A third party should be able to follow the calculation for each claim. Save not only the result but also product lists, price queries, screenshots, timestamps, URLs, regional settings and the calculation used. The raw data should show which version the audience actually saw.

In 4 Ob 99/21v, the Supreme Court highlighted the importance of assertion and proof for factual advertising claims. For a price comparison, saying that an internal analysis found the basket cheaper is therefore not enough. The analysis must cover the actual wording used.

The comparative advertising overview and the advertising claims self-check help separate the statement, source and evidence chain. A spreadsheet created only after a dispute does not replace preserved source data.

The sentence next to the price, headline, colours, product images, stars, footnotes and landing page work together. “Our basket is cheaper” reaches further than “In the collection on 15 August, these ten products were 8% cheaper”. The limitation must be visible and intelligible.

A small footnote cannot reliably correct a broad main statement. This is particularly important in mobile advertisements, short social-media formats and search ads. If the comparison applies only to a region, minimum quantity or delivery date, that framework must be made sufficiently clear.

Also check whether the competitor is identifiable and whether the advertising denigrates it or suggests a business connection. The Supreme Court considers overall impression and objective verifiability; not every mathematically correct difference supports every promotional exaggeration.

After a challenge, preserve the complete advertising version, delivery time, price records and basket list. Do not delete or overwrite the original data. Only a comparison between advertising, raw data and approval records shows whether the issue concerns the date, product selection, price components or wording.

A public counterattack is rarely the best first step. Preserve the facts and identify the actual published statement first. For an injunction or interim relief, current relevance, risk of repetition and evidence must be assessed separately. The injunction and interim relief topic explains these questions.

Where a comparison is used across several channels, review the affected advertisements, landing pages and marketplace offers together. Correcting one subpage may leave the misleading overall impression in an advertisement or marketplace listing.