When Does an Influencer's 'X vs Y' Comparison Count as Comparative Advertising Under Danish Law?

Short answer: the comparison is regulated the moment a competitor is recognisable

The moment an influencer's content — an "X vs Y" video, a split-screen image, or even a line like "ours is cheaper than [competitor]" — directly or indirectly identifies a competitor or a competitor's products, it is comparative advertising under Danish marketing law, whether or not the word "comparison" is ever used. The rule sits in § 21 of the Danish Marketing Practices Act (markedsføringsloven), and it applies to anyone advertising commercially — including an influencer who is paid or gifted product to make the comparison. The comparison is only lawful if it meets eight specific conditions in § 21(2). This applies on top of, not instead of, the ordinary duty to mark the post as an ad.

What § 21 defines as comparative advertising

§ 21(1) defines comparative advertising broadly: any advertising which explicitly or by implication identifies a competitor or products offered by a competitor. That means an influencer doesn't need to name the competitor to be covered — a clear enough hint ("the big brand everyone knows") can be enough if the viewer can work out who is meant.

The eight conditions in § 21(2)

Comparative advertising is generally lawful in Denmark — unlike in some other countries, there's no blanket ban. But it has to meet all eight conditions in § 21(2) to be lawful:

All eight have to be met at the same time — if even one condition is missing, the comparison is unlawful, no matter how accurate the rest of the claim is.

How this differs from the ad-disclosure duty

It's easy to conflate the two rule sets, but they answer different questions. The ad-disclosure duty (see influencer marketing disclosure rules in Denmark and the EU) is about whether the viewer can tell the post is paid or sponsored. § 21 on comparative advertising is about something else: whether the comparison itself between two brands or products is fair and documented. A post can be correctly marked as an ad and still be unlawful comparative advertising if the claim about the competitor isn't documented — the two duties apply at the same time, stacked on top of each other. Certain industries carry their own, further-reaching rules on top of both of these layers — see influencer marketing in regulated industries in Denmark for alcohol, finance and pharma.

A real case: when a workshop chain couldn't document its savings claim

In November 2020, the Danish Maritime and Commercial Court (Sø- og Handelsretten) decided a case between the trade association De Danske Bilimportører and workshop chain Skorstensgaard. For several years, Skorstensgaard had used claims like "20-40% cheaper than brand workshops" and "our mechanics are about 30% more efficient." The court found that Skorstensgaard lacked the documentation to back up those claims — making the marketing unlawful comparative advertising under § 21. Note: this case wasn't about an influencer — it was a company's own marketing — but the principle applies regardless of who makes the claim: a percentage claim about being cheaper or better than a competitor has to be documentable before it's posted, not after.

Decision framework: is an influencer's "X vs Y" comparison lawful?

• IF the comparison names or clearly hints at a specific competitor → § 21 applies, and all eight conditions need checking before the post goes live.
• IF the claim is a number ("X% cheaper," "twice as durable") → require documentation (a receipt, a test result, an official price list) from the brand before the creator posts it — not a verbal assurance.
• IF the comparison is a pure taste judgement ("I think X tastes better") → that's generally not a documentable, objective comparison in § 21's sense, and should be phrased clearly as personal opinion, not a factual claim.
• IF the video shows the competitor's product or logo → also check whether the depiction creates confusion, denigrates the competitor, or implies your own product is a copy.

Worked example: why "we're cheaper" needs a number, not a feeling (hypothetical, illustrative only)

The example below is invented to illustrate what "documentable" means in practice — it is not a Make Influence customer case.

An influencer makes a paid video comparing a skincare product priced at DKK 249 to "the well-known brand," priced at DKK 399 — a claimed saving of (399 − 249) ÷ 399 = 37.6%. To meet condition 3 (documentable and representative), the brand needs to show: (a) that DKK 399 is actually the competitor's current price, not an old or one-off price, and (b) that the two products genuinely compare "the same need" — same quantity, same purpose, not a 50ml size against a 100ml pack. If the competitor's product is also available in a smaller 100ml size at DKK 249, the comparison is no longer representative, and the 37.6%-saving claim is misleading even though the individual krone figures are correct.

Make Influence's recommendation

We recommend that a brand never lets a creator phrase a comparative claim from memory or "that's usually right." If a brief includes a comparison with a named competitor, the brief itself should carry the concrete documentation — a receipt, a price list, a test result — that the creator can point to, plus a deliberate choice of whether the comparison is phrased as fact or personal experience. It's also worth adding a comparative claim to the ordinary pre-campaign checklist — see a brand safety checklist for influencer partnerships. That's a small amount of preparation next to the consequence of a case like Skorstensgaard's.

FAQ

Does the competitor need to be named directly for § 21 to apply?

No. § 21(1) covers any advertising that directly or indirectly identifies a competitor. A clear enough hint that the viewer can decode is enough.

Can an influencer say their own product is "the best on the market"?

A pure, non-specific superlative with no reference to a named competitor is typically not comparative advertising in § 21's sense, but it can still be a misleading claim under markedsføringsloven's general rules if it can't be documented.

Who's liable if the comparison turns out to be unlawful — the brand or the influencer?

In practice, both parties can be held liable under markedsføringsloven, but the brand typically carries the main responsibility for the content of the commercial claim, while the influencer has a separate responsibility for what they actually say and post.

Does this only apply to comparisons with a competing brand, or also a brand's own earlier products?

§ 21 specifically concerns comparison with a competitor. A comparison with the brand's own earlier product ("30% more durable than our old formula") isn't comparative advertising in § 21's sense, but still has to be documented under markedsføringsloven's general ban on misleading marketing.

What's the difference between this and the ad-disclosure rules?

They're two different questions. Ad disclosure is about whether the viewer can tell the post is paid. § 21 is about whether the comparison itself with a competitor is fair and documented. See influencer marketing disclosure rules in Denmark and the EU for the marking duty.

Does § 21 apply if the comparison is in an Instagram Story that disappears after 24 hours?

Yes. Markedsføringsloven doesn't distinguish based on how long content stays available — the rules apply to any commercial statement, regardless of format or duration.

Are the rules different for B2B versus B2C comparisons?

§ 21 applies to commercial marketing generally, not only consumer-facing advertising — the Skorstensgaard case is itself an example of that. The specific conditions are the same either way.

Does this relate to the rule about documenting a discount percentage in a campaign?

The two rule sets share a spirit — both require that a number a brand puts in a post can actually be documented — but they're legally distinct. § 21 is about comparison with a competitor; the 30-day rule is about whether a "normal price" is genuine. See the EU Omnibus Directive: what the 30-day lowest-price rule means for influencer discount codes for that rule.

Can an influencer show a competitor's logo in a comparison video?

That raises several questions at once — trade mark law, § 21's ban on confusion and denigration, and whether the use itself presents the product as a copy. Seek specific advice if a campaign is considering showing a named competitor's logo or packaging.

See also the influencer marketing glossary for more core terms.