Archive for the 'Marketing' Category
March 12, 2013
Earlier today, the U.S. Federal Trade Commission (FTC) issued revised Dom Com Disclosure guidelines (see: FTC Staff Revises Online Advertising Disclosure Guidelines). From the FTC:
“… the new FTC staff guidance, .com Disclosures: How to Make Effective Disclosures in Digital Advertising takes into account the expanding use of smartphones with small screens and the rise of social media marketing. It also contains mock ads that illustrate the updated principles. Like the original, the updated guidance emphasizes that consumer protection laws apply equally to marketers across all mediums, whether delivered on a desktop computer, a mobile device, or more traditional media such as television, radio or print. If a disclosure is needed to prevent an online ad claim from being deceptive or unfair, it must be clear and conspicuous. Under the new guidance, this means advertisers should ensure that the disclosure is clear and conspicuous on all devices and platforms that consumers may use to view the ad. The new guidance also explains that if an advertisement without a disclosure would be deceptive or unfair, or would otherwise violate a Commission rule, and the disclosure cannot be made clearly and conspicuously on a device or platform, then that device or platform should not be used.”
Some of the specific topics addressed by the FTC’s new guidelines (the Canadian parallel of which are the Competition Bureau’s “Internet Advertising Guidelines” – i.e., Application of the Competition Act to Representations on the Internet – which have not been substantively updated in a few years) include: proximity and placement of disclosure; use of hyperlinks; effective disclosure before purchase; disclosure in new media (i.e., where there are space constraints); distracting elements and the overall context of advertising; multi-media; and understandable disclosure for consumers.
For a copy of the FTC’s new guidelines see: .com Disclosures.
March 12, 2013
Earlier today, as part of its Fraud Prevention Month efforts in March, the Competition Bureau announced its Top 2 on “2 Good 2 B True Day” scams: false online testimonials; and mobile “subscription traps”.
With respect to false testimonials, the Bureau highlighted concerns with testimonials that appear to be from unbiased individuals, but in fact are paid-for endorsements (or malicious or fraudulent).
Under the Competition Act, false testimonials can be challenged where they are either literally false or misleading (under the general civil or criminal misleading advertising provisions of the Act). The Competition Act also includes a standalone testimonials section that makes it reviewable conduct to publish a testimonial for a product unless the person publishing it can establish that: the testimonial was previously made or published; or was approved with permission to make/publish it.
The Bureau has also raised concerns in the past with false or misleading testimonials. For example, in its pamphlet False or Misleading Representations and Deceptive Marketing Practices the Bureau says: “[u]nder the civil regime, the general provision prohibits all materially false or misleading representations. [and] “other provisions specifically prohibit … untrue, misleading or unauthorized use of tests and testimonials …” These guidelines also offer the following testimonial-related guidance for advertisers: “[d]on’t use the results of product performance tests and/or testimonials in your advertising unless you are authorized to use them; or if you are authorized to use them, don’t distort test results or the scope of testimonials”.
As for “subscription traps” – which the Bureau defines as “techniques designed to make consumers register for recurring fees for goods” – the Bureau emphasizes situations where products appear to be free (when charges apply) or where there are hidden or difficult to understand conditions (or refunds subject to conditions). This particular scheme has been an issue, among others, in a number of traditional marketing fraudulent directory scams in recent years (e.g., deceptive fax spam).
The Bureau’s Backgrounder issued with its announcement also includes other tips for consumers to avoid these scams.
Both of these fraud techniques discussed by the Bureau are consistent with its recent and ongoing enforcement priorities in the advertising and deceptive marketing areas, which include a focus on the web and new technology (particularly mobile), increased pressure to clearly disclose the total price of products, heightened scrutiny of disclaimers and hidden conditions and as well consistent enforcement based not only on the literal meaning of claims but also the overall “general impression”.
For copies of the Bureau’s announcement and Backgrounder, see: here and here.
CANADIAN CASL (ANTI-SPAM LAW) PRECEDENTS
Do you need a precedent or checklist
to comply with CASL (Canadian anti-spam law)?
We offer Canadian anti-spam law (CASL) precedents and checklists to help electronic marketers comply with CASL. These include checklists and precedents for express consent requests (including on behalf of third parties), sender identification information, unsubscribe mechanisms, business related exemptions and types of implied consent and documenting consent and scrubbing distribution lists. We also offer a CASL corporate compliance program. For more information or to order, see: Anti-Spam (CASL) Precedents/Forms. If you would like to discuss CASL legal advice or for other advertising or marketing in Canada, including contests/sweepstakes, contact us: contact.
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March 7, 2013
Earlier today, the Federal Government posted comments that it has received to the proposed Industry Canada regulations under Canada’s pending federal anti-spam legislation (CASL). Revised Industry Canada regulations were posted in earlier January for public comments, based on significant industry push back to CASL and, in particular in relation to the proposed Industry Canada Regulations, narrow and arguably commercially unworkable exceptions to the legislation. More than 100 comments have been posted, from a variety of companies, associations, individuals and other organizations.
March 6, 2013
In addition to my contest law services, I offer Canadian contest forms and precedents for random draw and skill contests in Canada (excluding Quebec).
These Canadian contest forms are intended to bridge the gap between legal advice and forms on the web, which may not be current, accurate, reviewed by counsel or even intended for Canadian promotions (i.e., U.S. or international forms that do not include the key requirements to effectively operate a contest in Canada).
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CANADIAN CONTEST RULES & FORMS
Need contest rules and forms for a Canadian Contest? I offer a selection of Canadian contest rules and forms for common types of Canadian contests. For more information see: Contest Forms.
February 18, 2013
Do you need contest rules/precedents
for a Canadian contest?
We offer many types of Canadian contest/sweepstakes law precedents and forms (i.e., Canadian contest/sweepstakes law precedents to run common types of contests in Canada). These include precedents for random draw contests (i.e., where winners are chosen by random draw), skill contests (e.g., essay, photo or other types of contests where entrants submit content that is judged to enter the contest or for additional entries), trip contests and more. Also available are individual Canadian contest/sweepstakes precedents, including short rules (“mini-rules”), long rules, winner releases and a Canadian contest law checklist. For more information or to order, see: Canadian Contest Law Forms/Precedents. If you would like to discuss legal advice in relation to your contest or other promotion, contact us: Contact.
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Canadian contest law can, to say the least, be perplexing to some. It’s a mix, at least usually, of competition law, the Criminal Code and contract law. As such, key Canadian contest legal requirements include mandatory Competition Act disclosure (“short rules”), avoiding the illegal lottery offences of the Criminal Code and taking common sense steps to make sure contest rules accurately reflect the promotion, are enforceable and give the maximum amount of latitude to promoters to deal with potential contingencies that may arise.
February 16, 2013
Earlier this month, the Ontario Court of Appeal dismissed an appeal in the Yellow Pages Marketing misleading advertising case (see: Competition Bureau v. Yellow Pages Marketing).
In this case, an individual found liable last year by the Ontario Superior Court to pay a $500,000 “administrative monetary penalty” or “AMP” for misleading advertising appealed the lower court’s judgment (see: here). The Ontario Superior Court had found a group of companies and individuals liable under the civil misleading advertising provisions of the Competition Act for sending deceptive faxes designed to lead recipients to believe that they were merely confirming online directory information for the legitimate Yellow Pages Group (“YPG”) when, in fact, the companies, that were unrelated to YPG, used fine print disclaimers to sign-up recipients to new two-year online directory contracts with significant fees.
In finding the companies and individuals liable, the Superior Court reviewed the relevant law under the civil misleading advertising provisions of the Competition Act, finding that the faxes were misleading, material and that fine print disclaimers used failed to cure otherwise misleading claims. The Court ordered penalties that included a ten-year prohibition order, compensation for consumers and more than $9 million in AMPs, including more than $1 million against individuals – the highest award to date in contested proceedings for a Canadian misleading advertising case.
On appeal, one individual appellant argued that he had been deprived of a fair hearing and opportunity to adduce evidence relevant to his defense, in particular evidence of a lack of involvement in the marketing practices and relevant to the Competition Act’s factors for determining the size of AMP to be imposed. The appellant also argued that the lower court hearing should have been adjourned to allow him to adequately protect himself.
In a short but interesting decision, the Court of Appeal rejected all of these arguments. With respect to evidence, the Court of Appeal found that the appellant chose not to file his own affidavit, affidavit evidence that had been filed addressed the appellant’s involvement in the misleading conduct and financial status and that it was, in any event, open to the lower court judge to decide what weight to give to the available evidence.
As to the fairness of the proceeding, the Court of Appeal found that there was no evidence that any concerns were raised about the evidence in the prior proceedings (or an adjournment requested) and that the lower court judge had no independent obligation to become involved in the presentation of the appellant’s case or evidence called. The Court of Appeal referred to these matters as the “exclusive domain of client and counsel”. The Court held that “other than in extraordinary circumstances such as when it is apparent that a conflict has arisen between a client and his or her counsel, the court should not, on its own accord, become involved in the actual presentation of the case.”
On liability, the Court of Appeal found that the lower court’s finding was “unassailable”, based on evidence the appellant knew the companies were making false and misleading representations, was aware of prior efforts to obtain compliance – for example, in the U.S. – and a 2010 Competition Bureau warning that had specifically been brought to his attention. In upholding the liability finding, the Court of Appeal also pointed to the appellant’s responsibility for complaints and key aspects of the companies’ deceptive marketing activities.
February 3, 2013
Do you need contest rules/precedents
for a Canadian contest?
We offer many types of Canadian contest/sweepstakes law precedents and forms (i.e., Canadian contest/sweepstakes law precedents to run common types of contests in Canada). These include precedents for random draw contests (i.e., where winners are chosen by random draw), skill contests (e.g., essay, photo or other types of contests where entrants submit content that is judged to enter the contest or for additional entries), trip contests and more. Also available are individual Canadian contest/sweepstakes precedents, including short rules (“mini-rules”), long rules, winner releases and a Canadian contest law checklist. For more information or to order, see: Canadian Contest Law Forms/Precedents. If you would like to discuss legal advice in relation to your contest or other promotion, contact us: Contact.
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When running promotional contests in Canada, compliance tends to focus on the Competition Act, Criminal Code, privacy and ensuring that mandatory short rules and complete terms accurately reflect the promotion (and give maximum latitude to a contest promoter to take steps in the event an issue or contingency arises). While all of this is of course important and in many cases fairly straightforward, one aspect that can be overlooked is social media site rules (and another reason one size does not fit all in terms of contest rules and disclosure).
January 28, 2013
I am pleased to announce the launch of my new website: Canadian Contest & Promotions Law (www.contestlawyer.ca). The new website includes overviews of key aspects of running promotional contests in Canada (including Competition Bureau policies, application of the federal Competition Act and Criminal Code and Canadian advertising law issues) and frequently asked questions (FAQs) about Canadian contest/sweepstakes laws, guidelines and enforcement.
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Do you need contest rules/precedents
for a Canadian contest?
We offer many types of Canadian contest/sweepstakes law precedents and forms (i.e., Canadian contest/sweepstakes law precedents to run common types of contests in Canada). These include precedents for random draw contests (i.e., where winners are chosen by random draw), skill contests (e.g., essay, photo or other types of contests where entrants submit content that is judged to enter the contest or for additional entries), trip contests and more. Also available are individual Canadian contest/sweepstakes precedents, including short rules (“mini-rules”), long rules, winner releases and a Canadian contest law checklist. For more information or to order, see: Canadian Contest Law Forms/Precedents. If you would like to discuss legal advice in relation to your contest or other promotion, contact us: Contact.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
