Canadian COMPETITION LAW

A few interesting advertising and marketing law developments that caught my eye today included:

Canadian Transportation Agency Wraps up Consultations on Air Services Price Advertising Regulations

The Canadian Transportation Agency wrapped up its public consultations on its Air Services Price Advertising Regulations on February 26^th.  The input that the CTA received from its consultations will contribute to new airfare price advertising regulations, to be published in the Canada Gazette in the coming months.  The CTA’s initiatives in the airline sector are consistent with a more general effort by other enforcement agencies, including the Competition Bureau, to ensure that the total price for goods and services is disclosed for consumers (the recently settled Bell case being perhaps the most conspicuous example).  For more see: Canadian Transportation Agency – Air Services Price Advertising Regulations.

Real Estate Council of British Columbia February Report – Advertising Compliance Reminder

In the Real Estate Council of British Columbia’s interesting February newsletter, the Council kicks off its updates and summaries of disciplinary cases with a summary of advertising law compliance and some examples of recent discipline.  The Council’s note is a reminder that advertising in Canada is governed not only by the Competition Act and other general “framework” legislation, including consumer protection legislation, but also by a variety of industry and sector specific rules – in the case of real estate licensees in British Columbia, this includes the Real Estate Council’s Rules (see: Real Estate Council Rules).

REALTORS® in British Columbia are also subject to the CREA Code and other specific rules including, for example, the CRTC’s Unsolicited Telecommunications Rules and the new anti-spam legislation (Bill C-28), once in force, if engaging in electronic marketing.

Some of the concerns and cases discussed in the Council’s February newsletter include where advertising failed to include the name of the brokerage, the advertising of unapproved team names and a general reminder not to engage in misleading advertising (see: Report From Council).

U.S. Federal Trade Commission to Host Public Workshop to Explore Online Advertising Disclosures

The Federal Trade Commission announced today that it would hold a public workshop to explore advertising disclosures in online and mobile media on May 30, 2012.

Given the increasing cooperation between the Competition Bureau and international enforcement agencies, including the U.S. FTC and DoJ, as well as the increasing level of convergence in regulation generally (particularly the regulation of Internet and new media), this upcoming FTC workshop caught my eye.

This U.S. FTC announcement today also made me wonder whether the Canadian Competition Bureau has plans to update its own Internet advertising guidelines.  While these were updated to reflect Competition Act amendments in 2009, significant substantive changes to these guidelines, in terms of new media and evolving technologies, have not been made since they were issued in 2003 (see: Application of the Competition Act to Representations on the Internet).

In making the announcement, the FTC said:

“The Federal Trade Commission will host a day-long public workshop to consider the need for new guidance for online advertisers about making disclosures required under FTC law. The guidance will address technological advancements and marketing developments that have emerged since the FTC first issued its online advertising disclosure guidelines known as “Dot Com Disclosures” 12 years ago.

The workshop, to be held on May 30, will cover revising the Dot Com Disclosures so they illustrate how to provide clear and conspicuous disclosures in the current online and mobile advertising environment. Any revisions will be consistent with the goals of the original guidelines and will continue to emphasize that consumer protection laws apply equally to online and mobile marketers, and to other media. The FTC began seeking input for revising the Dot Com Disclosures guidelines last year.”

Topics to be discussed may include the following:

“How can effective disclosures be made on social media platforms and mobile devices – including when they are used in commercial texting – that limit the space available for disclosure?  For example, when consumers are paid or receive other benefits for providing an endorsement, how can they effectively disclose on platforms that allow only short messages or a simple sign of approval?

When can disclosures provided separately from an initial advertisement be considered adequate?  For example, if a consumer receives a location-based ad for a discounted cup of coffee on her mobile device because she is near a particular coffee shop, what terms must be disclosed in the mobile ad and what terms, if any, do not have to be disclosed until the consumer enters the coffee shop to make her purchase?

What are the options when using devices that do not allow downloading or printing the terms of an agreement?  For example, is providing consumers a means to send a copy of the agreement to themselves to read later an effective way to provide this information?

How can disclosures that are made in the original advertisement be retained when the advertisement is aggregated (for example, on dashboards) or re-transmitted (through, for example, re-tweeting)?  

What are the disclosure opportunities and limitations of hyperlinks, jump links, hashtags, click-throughs, layered disclosures, icons, and other similar options?  How should these options be evaluated in terms of placement and proximity?

How can short, effective, and accessible privacy disclosures be made on mobile devices?

What does the research show about how consumers’ use of mobile and other devices can affect the effectiveness of disclosures on particular devices or platforms?  And what does it show about the relationship between how consumers use mobile devices and their understanding of disclosures and advertising displayed on mobile devices?  What does the research show about how consumers make decisions based on that information?  Is there specific research on the effectiveness of disclosures on mobile devices, including layered disclosures and icons, and, if so, what are the implications of that research for disclosures such as offer terms and privacy practices?”

For the complete FTC news release see: FTC Will Host Public Workshop to Explore Advertising Disclosures in Online and Mobile Media on May 30, 2012.

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