Argentina: Comparative advertising in the new Civil and Commercial Code
Several rules have been applied to comparative advertising, for example competition law rules which regulate unfair competition (Section 159 of the Argentine Criminal Code, Section 10 bis of the Paris Convention), and trade mark-related rules.
Now, with the approval of the new Civil and Commercial Argentine Code, comparative advertising, which had been dealt with basically from the point of view of the unfair competition law or the trade mark law, is also dealt with, in the new Code, from the perspective of the consumer law. In this regard, the code establishes when comparative advertising is prohibited.
Section 1101 of the new Code makes reference to the different types of advertising that are prohibited, and specifically subsection b) refers to the cases in which comparative advertising is prohibited. This section states:
Advertising. Advertising shall be banned if:
b) it makes comparisons between goods or services, when the nature of said comparisons is such that they lead the consumer to error;
Therefore, by virtue of this section, the prohibited comparative advertising is that which is not based on the truth and, consequently, leads the consumer into error. It is, for example, comparative advertising based on elements or parameters that lack objectivity.
It should be noted that the prohibition established is intended to protect the consumer, as the Code effects such protection when regulating consumption agreements and, thus, other principles or regulations shall become applicable to the conflicts that comparative advertising might cause among competitors.
Daniel R Zuccherino