Law no. 158/2008 on misleading and comparative advertising (the “Law”) governs the use of commercial messages that involve comparisons between competing products or services. Adopted in a volatile economic context, the Law aimed to strengthen consumer protection and maintain a fair competitive environment.
The notion of comparative advertising is defined as advertising that explicitly or implicitly identifies a competitor or that competitor’s goods or services. In essence, it involves promoting one’s own product by reference to competing offers, with the purpose of highlighting differences considered relevant to the consumer.
When does a comparison become a legal risk?
The Law establishes cumulative conditions that must be met for comparative advertising to be considered lawful. A commercial message of this type is permissible only when it:
- is not misleading;
- concerns products intended to meet the same needs or serve the same purposes;
- provides an objective comparison, relating to one or more essential, relevant, verifiable, and representative characteristics of the products/services concerned, including price;
- does not discredit or denigrate the trademarks, trade names, distinctive signs, goods, services, or circumstances of a competitor;
- in the case of products with a designation of origin, compares only products bearing the same designation;
- does not take unfair advantage of the reputation of a competitor’s trademark, trade name, distinctive sign, or designation of origin;
- does not present the products as imitations or replicas of goods or services protected by a trademark or trade name;
- does not create confusion between traders, between the advertiser and a competitor, or between their respective trademarks, trade names, distinctive signs, goods, or services.
By establishing these criteria, the Law seeks to clearly delineate the scope of permissible comparative advertising and to prevent misleading or denigratory practices, thereby ensuring a balance between commercial freedom and the principles of fair competition.
Competent authorities and control mechanisms
The legal framework differentiates between complaints submitted by traders and those lodged by consumers, assigning distinct authorities:
- The Ministry of Public Finance and the National Audiovisual Council – for complaints filed by traders, organisations, or professional associations;
- The National Authority for Consumer Protection – for complaints submitted by consumers.
Thus, through Law 158/2008, the legislator aimed to balance traders’ freedom to market their products with the imperative of preserving a fair competitive environment. Comparative advertising remains permissible, yet subject to strict regulatory conditions.