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March 13, 2017

Practical Law Canada Competition has published a new Legal Update, which discusses key areas of competition law compliance for trade and professional associations. Below is an excerpt with a link to the full Update.

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This Legal Update discusses key areas of competition law compliance for trade and professional associations. It provides a brief overview of competition law and associations, summaries of some of the important operational areas for compliance and review and practical steps associations can take to minimize competition law risk. This Update also provides links to Practical Law Canada competition resources that counsel can use to assist their association clients with compliance.

Practical Law Canada Competition

Trade and professional associations can and do perform many legitimate functions, including promoting common interests to the public, government advocacy, research, member education and the promotion and enhancement of product standards.

However, because association activities by definition typically involve the interaction of direct competitors, they can also in some cases raise competition law concerns under the Competition Act, R.S.C. 1985, c. C-34 (Competition Act).

In general, some association activities that can raise competition law issues include those dealing with pricing, advertising, customers, territories, market shares, terms of sale and other key aspects of competition.

Some of the more specific association activities that can raise competition law concerns include:

1. Board and membership meetings (for example, if competitively sensitive information is exchanged or meetings result in conduct that may violate the Competition Act).

2. Exchanges of competitively sensitive information (for example, in connection with surveys or benchmarking).

3. Codes of conduct that prohibit or restrict competition.

4. Membership rules that impede access to the association, key inputs or impose significant barriers for some competitors.

In the past, associations have been challenged by both the Competition Bureau (Bureau) and private plaintiffs. The most common theories of harm argued have been conspiracy (section 45, Competition Act), abuse of dominance (sections 78 and 79) and misleading advertising (for example, section 74.01 of the Competition Act).

Below is an overview of key areas where associations typically need competition compliance with steps that they can take to minimize risk and related Practical Law Canada compliance resources.

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For the full Update see: Competition Compliance For Associations: Key Areas and Resources.

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