To prove a superiority claim false, a claimant generally has to have affirmative evidence (e.g., its own testing) disproving the superiority of the referenced quality. Thus, although it is certainly advisable for an advertiser to have factual information to back up a superiority claim, liability in connection with such superiority claims largely depends on the truth of the statement itself, and not on whether the advertiser has conducted testing to adequately substantiate the claim. By contrast, in order to prove an establishment claim to be false, a claimant usually has to only prove that the referenced test is unreliable or does not in fact support the conclusion, without having to prove that the underlying comparison is false. Thus, advertisers using establishment claims as a means to compare products should realize that even if the underlying comparison may be true, liability could still exist if the referenced test is unreliable or not an accurate measure the specific feature being compared.
This is just one of many considerations that should be taken into account when undertaking a comparative advertising campaign. It is therefore advisable that advertisers and marketing professionals diminish potential exposure by consulting with a legal professional who can carefully evaluate the risks associated with particular comparative claims.