So the first company markets its pale salmon with the slogan “Guaranteed not to turn pink in the can!” (Not really, but for the purposes of this fiction let’s imagine.) The second counters with “No bleach used in processing!” (Implying that the first one turned the salmon white with bleach without actually saying so.) The first counters that with “No toxic lead dyes used in processing!” (Again, a rather strong implication.) The first counters with… enough. Is it legal?
I guess my question is: Is it legal to make veiled implications like that if you never actually lie about a competitor’s product and your statements are, on their face, actually true?
Of course it’s legal. You made a true statement, you never even mentioned the competition, so what’s the harm? Many similarly dubious benefits are claimed already: fat-free pretzels, non-fat instant pudding, low-sodium water, etc. – not to mention the huge markets that advertising has created for solutions to problems we never knew we had.
I think it’s mostly avoided in a mutually-assured-destruction kind of way. There is a good deal of equity in having many respected brands in a category. A war like your hypothetical one would be bad for all sides.
Someone told me once that Papa John’s was sued by Pizza Hut because they said something like “we use real cheese on our pizza!”, and Pizza Hut felt it was an implication that they used fake cheese. I cannot say if this really happened, or what the outcome was.
Yep, that’s all nice and legal. All of the statements in your example are presumably true, and none of them are defamatory.
That said, the vast majority of companies would shy away from such proclamations, for several reasons.
The “we’re a food company, we can’t words like ‘toxic’ on our can” reason. This applies in some way to every industry. And no, it doesn’t matter that the offending word is present in a reassuring claim about the absence of the bad thing. It’s the word itself that scares the client.
The “we don’t want to piss off our competitor” reason. This one is based on fear (of the competitor’s unknown response, of your organization’s ability to then respond). In an uneven marketplace, this can be a valid concern. But if you sell a parity product in a mature marketplace, then you need to steal customers from your competitors, and aggressive marketing is one way to do that.
The “this industry doesn’t do that” reason. For some period of time, no one in the industry has played the “no bleach!” card. As a result, executives think they have an unwritten agreement with their competitors not to be aggressive. Such an agreement does not exist, of course. And eventually one of them (or a newcomer) SHOCKS the establishment with a bold claim and sends everyone into a marketing tizzy.
The “Legal killed it” reason. Despite the fact that the claims you are making are legal, your lawyers will get twitchy. Now, if your client treats its lawyers like fact-checkers, “no bleach!” will fly over their objections. But if your client’s lawyers have power, “bleach” gets canned.
