Our serum performs five times better than our nearest rival serum, in half the time. That is a completely ordinary comparative advertising claim, the kind a market leading beauty brand runs all the time, and on its own the ARB has never had a problem with it provided the performance claim is real and the comparison is fair. What changed this year is that the exact same claim, run by the exact same market leader, can now also be read differently, as something capable of shutting a smaller competitor out of the market rather than simply outselling them, wherever that market leader can reasonably be perceived, in competition law terms, as a dominant player in its market or sector, with the rival it is measuring itself against sitting well beneath it in scale. That reading falls under competition law, not advertising law.
For a market leading beauty brand, the practical shift is this. A comparative or superiority claim now needs to clear two questions before it goes live, not one. Is it substantiated, which the ARB already requires. And separately, could the brand's own position in the category, if it is reasonably perceivable as a dominant one, turn a perfectly true claim about a smaller rival's product into something capable of impeding that rival's ability to compete, rather than simply beating them on the shelf. That second question has never sat inside a beauty brand's advertising clearance process, and answering it belongs with whoever owns competition law risk, not with whoever wrote the campaign brief.
That second question exists because of two decisions out of Brussels this year. In Sanofi and in Vifor, the European Commission examined whether a dominant company's own claims about a rival's product, rather than its pricing or supply terms, could amount to exclusionary conduct under Article 102 of EU competition law. Both companies were accused of using messaging aimed at the people who influence buying decisions in ways capable of pulling demand away from a competitor, even though the underlying claims were never shown to be outright false, only selective or framed to leave the wrong impression. The lesson is not that comparative advertising is dangerous. It is that a claim can pass every advertising law test and still be assessed differently once the company making it is dominant.
South Africa already has the legal hook to run the same test, and it even tells you how dominance itself gets measured. Section 7 of the Competition Act treats a market share of forty five percent or more as dominance outright, treats anything between thirty five and forty five percent as dominant unless the firm can show otherwise, and allows dominance to be found below that on market power alone, the ability to set prices or trading terms without real regard for competitors. Section 8 then prohibits a firm that meets that test from engaging in exclusionary conduct, a provision that has already proven flexible enough to capture conduct never named in the Act itself, margin squeeze being recognised as exclusionary years after the Act was written. Nothing in that provision confines it to price or supply. The ARB's own comparative advertising rules, the same ones that let a dermatologist recommended claim stand this year because it was properly substantiated, only ever ask whether a claim is true and fair. Section 8 asks a different question entirely, whether the effect of the claim, true or not, is to impede a smaller rival's ability to compete. What has not yet happened in South Africa is a competition law complaint layered on top of an advertising claim the ARB has already cleared. Sanofi and Vifor are the clearest signal yet that it could.
Bottom Line Take Out
Europe has shown that a dominant company's advertising claims about a competitor can now be tested as antitrust conduct, not only as advertising conduct, and South Africa's Competition Act already contains both the provision and the market share test needed to run that same analysis. Market leading beauty brands running comparative or superiority claims should not wait for a competitor's complaint to find out where that line sits. Add the competition law question, and an honest look at your own market share, to ad clearance now, alongside the substantiation file the ARB already expects. A claim that clears the ARB can still fail this second test, and that failure costs far more than a correction notice.
References
Sanofi offers EU commitments for flu vaccine disparagement claims (Manufacturing Chemist) The Vifor Case: Disparagement Reloaded? (McDermott Will & Emery) The Competition Act: Dominance and its Abuses (Mondaq) The Competition Amendment Bill, 2018: Abuse of dominance, section 8 (Bowmans) Senwes Ltd v Competition Commission of South Africa (118/2010) [2011] ZASCA 99 (SAFLII) L'Oréal, Eucerin face off over "#1" claim as ARB rules (Bizcommunity)
