Canadian COMPETITION & ANTITRUST LAW

General impression. A term used in the context of advertising and marketing law, and in particular in relation to misleading advertising under the Competition Act.  In general, an advertising or marketing claim may contravene the “general” criminal (section 52) or civil (section 74.01) misleading advertising provisions of the Competition Act if it is literally false or misleading or if the “general impression” of the claim is false or misleading.  In this regard, subsection 52(4) of the Competition Act provides: “In a prosecution for a contravention of [the criminal misleading advertising section], the general impression conveyed by a representation as well as its literal meaning shall be taken into account in determining whether or not the representation is false or misleading in a material respect.”  The general civil misleading advertising provisions contain a similar section (subsection 74.03(5)).  As such, when reviewing advertising and marketing for compliance with the misleading advertising provisions of the Act, the entire context of a claim or representation must be considered, including the association and placement of words, the placement and choice of images, graphics and pictures, and as well consideration of whether the omission of material information (e.g., relating to price, quality, scope of services, important conditions, limitations, etc.) may mean that the “general impression” of the overall claim or representation could be seen as false or misleading.  The Competition Bureau’s 2001Misleading Advertising Guidelines provided one of the most detailed and relevant discussions of the “general impression test”, despite having been since replaced by updated misleading advertising guidelines by the Bureau since:  “Section 52(4) requires a court to take into account the general impression conveyed by a representation, in addition to its literal meaning. … The application of the general impression test is particularly important where: the representation is partially true and partially false, or the representation is capable of two meanings, one of which is false; the representation is literally true but is, in fact, misleading since it fails to reveal certain essential information … the representation is literally or technically true but creates a false impression, for example where the advertised results of a test of a product may not be significant to its use or efficacy but the representation makes it appear otherwise … ; the representation is literally true insofar as the oral or written statements are concerned but the visual part of the representation may create a false impression, for example where it depicts a model which is different from the advertised product …”

Geographic market definition. U.S. Department of Justice and Federal Trade Commission, Horizontal Merger Guidelines (2010): “The arena of competition affected by [a] merger may be geographically bounded if geography limits some customers’ willingness or ability to substitute to some products, or some suppliers’ willingness or ability to serve some customers.  Both supplier and customer locations can affect this.  The Agencies apply the principles of market definition … to define a relevant market with a geographic dimension as well as a product dimension.  The scope of geographic markets often depends on transportation costs.  Other factors such as language, regulation, tariff and non-tariff trade barriers, custom and familiarity, reputation, and service availability may impede long-distance or international transactions.”  See also the definitions of “market definition” and “product market definition”.

Grandfather clauses.  OECD, Competition Assessment Toolkit (2011): “Grandfather clauses relate to situations where the existing businesses (incumbents) are allowed to continue their operations under older rules whereas new firms are subject to the newly imposed rules and regulations.”

Greenwashing.  Devika Kewalramani & Richard J. Sobelsohn (Moses & Singer LLP): “’Greenwashing’ is a novel word that merges the concepts of ‘green’ (environmentally sound), and ‘whitewashing’ (to gloss over wrongdoing), to describe the deceptive use of green marketing that promotes a misleading perception that a company’s policies, practices, products or services are environmentally friendly.  ‘Greenwashing’ officially became part of the English language in 1999 with its entry into the Oxford English Dictionary.  It defines the term as ‘disinformation disseminated by an organization so as to present an environmentally responsible public image.’  The term is generally used when an organization expends more time and resources marketing their ‘greenness’ than actually adopting procedures that are environmentally beneficial.  It includes the practice of misleading customers regarding the environmental advantages of a specific product or service through deceptive advertising and unsubstantiated claims.”

Gun jumping. Allen & Overy, “Gun jumping in merger control”: “Under the merger control rules in the majority of jurisdictions, merging companies are prohibited from integrating their businesses until after the relevant merger clearance has been received. Competition authorities generally have the power to penalise companies that “jump the gun” and breach the suspension obligation. The policy reasons behind such rules are clear: until completion of a deal, the merging parties are independent entities and so should remain subject to the antitrust rules.”