We’ve served notice and are on the way out of the European Union one way or another. This does not mean that we can now ignore EU laws and regulations as, firstly, we remain members and secondly, it is probable that much of EU regulations will be incorporated in UK legislation.

Given that email marketing is cross border, it is probable that the regulations governing us will conform to those of the EU. What that means is that we still need to bear in mind and EU decisions on marketing. 

The Court of Justice of the European Union (CJEU) has recently decided on a squabble between two large French chains of hypermarkets. In essence it had to come to a decision as to whether the advertising campaign of one, which compared the prices they charged with those charged by the other chain. 

The basis of the objection was that like was not compared to like; the company used prices they charged in hypermarkets to those charged in the supermarkets of the other company. 

The defence came in two parts, the first being that the regulations,  the Misleading and Comparative Advertising Directive, did not expressly exclude such comparisons. This has all the appearance of desperation and the CJEU dealt with it by saying, in effect, that each case needed to be judged on it own merits. They had to decide whether the comparison was misleading. 

The second line of defence, that the company did not compare like with like, in this case hypermarket prices against those of a supermarket, was no material information, means of communicating information was not specified, was not upheld. The court decided that any such published information must be clear, unambiguous and timely. 

This case matters to the UK in general, including email marketing. There’s little more powerful than pointing out that your offer price is lower than that of your competitors’. A customer would be a fool to pay more for the same product. The current requirement under EU regulations is that adverts must not be likely to mislead and all material information should be clearly available. 

This requirement is unlikely to change when we leave the EU.

See: http://curia.europa.eu/jcms/upload/docs/application/pdf/2017-02/cp170012en.pdf