Archive for the 'Marketing' Category
In a curious twist in the growing dispute between the Alberta and British Columbia governments, stakeholders and individuals on either side of the environmental debate, with some political seesawing by the Federal Government thrown in, a British Columbia resident has recently alleged that Enbridge promotional videos for the proposed Northern Gateway pipeline were misleading.
According to media reports, the Vancouver Island resident filed a misleading advertising complaint with the Competition Bureau alleging that Enbridge promotional videos for its proposed Northern Gateway pipeline project omitted more than 1,000 square kilometers of islands along the proposed Northern Gateway tanker route (see e.g.: BC woman files complaint against Enbridge for misleading promotional videos). According to the complainant, Enbridge allegedly “distorted the maps in its promotional videos to erase numerous islands and twisting passages so that [the] tanker route appears much safer than it is”.
To some, it won’t be intuitively obvious why the Competition Act should apply, if true, to omissions of some BC terrain from videos for a pipeline – after all, Enbridge is not selling pipelines or tanker routes to Canadians.
The Competition Act does, however, cast a fairly wide net in terms of what may be false or misleading and a wide variety of claims have been challenged over the years under the “general misleading advertising” provisions of the Act, which prohibit not only false or misleading claims to market products (i.e., goods or services) but also “any business interest”.
In this regard, in one recent high-profile case, Commissioner of Competition v. Yellow Page Marketing, the Ontario Superior Court both reiterated that the Competition Act applies to false or misleading claims made to promote business interests and also that the phrase “business interest” should be liberally interpreted:
“Similar misrepresentations appear in the respondents’ domain names, invoices, reminder notices and letters sent by the respondents. Although the respondents argue that collection efforts after the contract had been completed were not to increase sales, the relevant provision of the Competition Act refers to promoting ‘any business interest’ and not just sales. The phrase ‘business interest’ must be given a wide meaning and collecting money, and threats made in relation to collection efforts, constitute promotion of the respondents’ business interests.”
One of the most colorful, if somewhat older, cases in which the misleading advertising provisions of the Act were invoked to challenge claims in relation to business interests was the Bre-X case. Plaintiffs in Bre-X claimed that that the publication of resource calculations, other data, reports and studies relating to Bre-X Mineral’s Indonesian mining assets breached the criminal misleading advertising provisions of the Competition Act, thereby giving rise to a civil cause of action.
We are pleased to have re-launched a new version of our Canadian Advertising and Marketing Law blog, which includes overviews of the key areas of Canadian advertising and marketing law, an Advertising Alphabet (a glossary of key Canadian advertising and marketing law terms) and recent Canadian advertising and marketing law news and trends.
To visit our new site see: Canadian Advertising & Marketing Law
Canadian advertising and marketing law is rather active just now – current and recent cases include the Rogers performance claims case (involving challenges to the performance claims provisions of the Competition Act), Richard v. Time (a deceptive contest mail-out case in which the Supreme Court of Canada considered the meaning of the “general impression test” for the purposes of the Quebec Consumer Protection Act), the Bell advertising case (which involved allegations by the Competition Bureau that certain price claims by Bell were false or misleading, and not cured by disclaimers) and the landmark Yellow Pages case (in which over C $9 million in penalties were ordered to be paid by companies and individuals involved in marketing claims ostensibly asking companies to confirm contact information in fax marketing, when in fact fine print disclaimers signed companies new contracts with significant fees). There has also been a considerable amount of sectoral regulation activity, including in the airline and cell phone industries.
On August 7, 2012, hearings in the landmark Canadian misleading advertising case Commissioner of Competition v. Rogers Communications Inc. began.
The case, the first constitutional test of increased “administrative monetary penalties” or “AMPs” under the Competition Act (the “Act”) for misleading advertising, promises to be a bit of a battle between the Competition Bureau (the “Bureau”) and Rogers in relation to a few key aspects of Canadian advertising law.
The case relates to certain performance claims made by Rogers in connection with its new cell phone brand Chatr, the effectiveness of disclaimers (like other recent high-profile Canadian advertising cases) and, perhaps the issue most likely to capture public attention, whether the potentially significant civil penalties now possible for misleading advertising are constitutional.
The Bureau is principally taking aim at two claims made by Rogers: that its (at the time) new Chatr cell phone brand had “fewer dropped calls than new wireless carriers” and that customers had “no worries about dropped calls”. According to the Bureau these claims, made to compete with new wireless entrants Mobilicity, Public Mobile and Wind Mobile, were either literally false in some cases (in markets where new entrant cell phone companies’ dropped call rates were superior to Rogers) or, where true, misleading (by conveying the general impression of appreciably lower dropped call rates, when any differences were in reality “imperceptible” to consumers).
The Bureau has also taken the position that certain disclaimers used by Rogers were ineffective in altering the general impression of its performance claims, including the view that some technical statements made by Rogers in disclaimers would be meaningless to the average consumer. For example, some Rogers disclaimers included statements such as: “Based on: cell site density; quality of indoor and underground reception; and seamless call transition when moving out of zone”.
Conventional wisdom is that the Competition Bureau will pursue most misleading advertising cases civilly, under section 74.01 of the Competition Act, not criminally (the Act also contains a criminal misleading advertising provision, section 52, as well as a number of other criminal deceptive marketing offences).
For example, in the Bureau’s 1999 Bulletin on the choice of the criminal or civil track for misleading advertising, which remains its leading statement on the question, the Bureau states that the civil track will be pursued in most instances (though it may proceed criminally where there is both clear evidence of intent – for example, continuing conduct after complaints are made – and a criminal prosecution is in the public interest).
Despite this expressed restraint to proceed criminally, there have been a steady stream of deceptive advertising and marketing cases over the past few years where the Bureau has commenced criminal enforcement proceedings. Some recent cases have involved deceptive telemarketing (see: here, here and here), employment opportunity schemes (see: here and here), a GST refund fraud scheme (see: here) and the sale of counterfeit cancer drugs on the Internet (see: here). In terms of criminal misleading advertising cases, the Bureau has appeared to be most concerned with deceptive telemarketing and fraudulent business directory schemes (although its efforts have not been restricted to those two categories of cases).
While imprisonment is rather rare in Canada for competition law offences, several individuals in these cases were also sentenced to imprisonment, ranging from conditional sentences in the community to 3 years, in addition to paying monetary penalties.
A few interesting competition, advertising and regulatory law developments caught my eye today including:
The Competition Bureau published its May Report of Concluded Merger Reviews including Glencore/Viterra (3 advance ruling certificates and 16 no action letters): Monthly Report of Concluded Merger Reviews – May.
The ABA, Antitrust Section has launched new e-book: Handbook of U.S. Antitrust Sources: ABA – Handbook of U.S. Antitrust Sources.
Canadian Lawyer Magazine published a rather good article on corporate anti-corruption policies (which caught my eye given our work in the competition law compliance program area): Why Boards Need to Pay More Attention to Anti-Corruption Policies.
The CBA is offering an advertising law compliance seminar on June 19th entitled “Truth in Advertising 101: Tips for In-House Counsel”. For registration information see: Truth in Advertising 101: Tips for In-House Counsel.
The Canadian Real Estate Association, together with its U.S. counterpart the National Association of REALTORS, are making a play for the Top Level Domain (TLD) .REALTOR for their members: The Canadian Real Estate Association Partners with the National Association of REALTORS in its Application for .REALTOR Top Level Domain Extension.
The Globe has reported on a Wal-Mart review of the world’s greatest corruption risk jurisdictions (Brazil, China, India, South Africa and Mexico): Wal-Mart Bribery Review Flags Brazil and China as Corruption Risks.
The British Columbia Real Estate Association (BCREA) published its May 2012 Connections newsletter (featuring advocacy news and BCREA’s government relations activities) with updates on disclosure and remediation for properties used in drug operations, new legislation to help solve strata disputes and information for REALTORS for the move back to the PST: BCREA – Connections – May 2012.
Constantine Cannon has written an interesting note on the recent National Football League Players Association collusion claim against the NFL, its clubs and team owners alleging a concerted arrangement for a $123 million per-Club salary cap for the 2010 season: Players Charge NFL Imposed Collusive Salary Cap.
The 1709 Blog posted an interesting update on French publishers’ settlement with Google in the Google Book Search Project case: Some French Fresh Air to the Google Books Project.
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CANADIAN CONTEST RULES/PRECEDENTS
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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Promotional contests in Canada are largely governed by the Competition Act, the Criminal Code, privacy legislation and the common law of contract. In addition, Quebec has a separate regulatory regime governing contests and contest authority (the Régie des alcools, des courses et des jeux). Canadian federal anti-spam law (CASL) also commonly applies to contests run in Canada (see below).
A few interesting regulatory law developments caught my eye today including:
Stanford University Press has published a new book entitled The Global Limits of Competition Law, edited by Daniel Sokol and Ioannis Lianos: Stanford University Press – The Global Limits of Competition Law.
The American Antitrust Institute has published a new global handbook on private competition law enforcement entitled The International Handbook on Private Enforcement of Competition Law: Edward Elgar Publishing – The International Handbook on Private Enforcement of Competition Law.
The Federal Government has introduced a new Safe Food for Canadians Act: Harper Government Introduces Safe Food for Canadians Act.
The Federal Privacy Commissioner yesterday issued a new policy position on online behavioural advertising: Policy Position on Online Behavioural Advertising.
The New York Times published an interesting Barnes & Noble Op Ed arguing that the settlement with e-book publishers would “punish consumers”: Barnes & Noble Argues Book Settlement “Punishes Consumers”.
The Australian competition regulator (the ACCC) has approved the Glencore/Viterra transaction: Australia Competition Watchdog Approves Glencore Takeover of Viterra.
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For more information about our regulatory law services contact: contact
For more regulatory law updates follow us on Twitter: @CanadaAttorney
On May 29, 2012, the CRTC issued an updated Do Not Call List (DNCL) Status Report current to April 30, 2012. According to the CRTC, about 10,700,000 telephone and fax numbers are currently registered on the DNCL, it has received a total of 542,991 telemarketing complaints and has 156 active investigations. The CRTC’s Status Report also states that 131 citations, 54 notices of violation and 42 administrative monetary penalties have been issued under the DNCL rules to date.
Under Canada’s DNCL, consumers may register their residential, wireless, fax or VoIP numbers to reduce unwanted telemarketing calls. Registrations are valid for five years and the DNCL rules impose a number of obligations on telemarketers including registering as subscribers of the DNCL, maintaining internal do not call lists, record-keeping and disclosure requirements and restrictions on calling times.
In addition to the DNCL rules, telemarketing in Canada is also governed by the Federal Competition Act, which imposes disclosure and other obligations on telemarketers, and provincial regulations – for example, provincial licensing requirements in British Columbia.
For the CRTC’s Report see: Status Report.
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For more information about our regulatory law services contact: contact
For more regulatory law updates follow us on Twitter: @CanadaAttorney
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
