Archive for the 'Advertising' Category
April 23, 2013
There has been quite a bit of debate recently in Canada about the pros and cons of regulation. Some of the highlights of this debate have included announcements by the Competition Bureau that it is stepping up its advocacy efforts in certain regulated sectors (e.g., health, wireless, etc.) (see: here), calls by some policy groups (e.g., the CD Howe Institute) to more closely scrutinize anti-competitive restraints insulated by the “regulated conduct doctrine” (see: here) and a vigorous ongoing debate in the wireless sector about the level of appropriate regulation and extent to which Canada’s large three incumbent carriers should be insulated from foreign competition.
April 12, 2013
Earlier today, the U.S. Federal Trade Commission released 2013 Annual Highlights setting out its priorities over the past year, which generally include promoting online privacy and data security, fostering competition in high-tech industries and healthcare and protecting children and other vulnerable consumers from fraud.
April 11, 2013
In recent news that may serve as a cautionary tale for telemarketers, the Canadian Radio-television and Telecommunications Commission (CRTC) recently announced that Comwave Telenetworks Inc. has paid a $100,000 penalty as part of a settlement for telemarketing practices involving the National Do Not Call List (DNCL) rules (which are a subset of the CRTC’s Unsolicited Telecommunications Rules).
April 6, 2013
Yesterday, Canada’s Interim Commissioner of Competition, John Pecman, delivered remarks at the C.D. Howe Institute in Toronto – his fifth speech since taking the position of Interim Commissioner last fall (see: Remarks by John Pecman, Interim Commissioner of Competition). In general, his remarks reflected some fairly well known aspects of his views as an antitrust official, notably his focus on enforcement (a theme consistent with the previous Commissioner who stepped down last fall).
March 29, 2013
CANADIAN CONTEST RULES/PRECEDENTS
Do you need contest rules and forms for a Canadian contest/sweepstakes? I offer a selection of Canadian contest rules and forms for random draw, skill and other common types of Canadian contests (i.e., contest precedents and forms). For more information see Canadian Contest Forms/Precedents.
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Want to win a house for $100? That’s exactly what one Ontario couple offered recently as a prize through a contest they came up with after watching the movie Spitfire Grill, where the main character holds a contest to give away her diner (see: Aylmer Couple Holds Essay Contest to Sell Country Home for $100).
March 19, 2013
Competition/antitrust enforcement agencies in both the U.S. and Canada have been increasing their focus on new media advertising/marketing practices, notably in the mobile space.
In Canada, recent cases and initiatives include the ongoing challenge by the Competition Bureau of Bell/Rogers/Telus for allegedly misleading premium text claims, statements by the Interim Commissioner of Competition that one of the Bureau’s advocacy priorities includes the digital economy and Federal Government and regulatory (CRTC) initiatives to spur increased wireless competition.
In the midst of these Canadian developments, the U.S. Federal Trade Commission has as well recently been increasing its focus on the digital economy, which has updated “Dot Com Disclosures” and a new video several days ago with advertising and privacy law tips for mobile app developers (see: FTC Staff Revises Online Advertising Disclosure Guidelines and FTC Announces Video With Tips for Mobile App Developers).
In Canada, the equivalent to the FTC’s new Dot Com Disclosures are the Competition Bureau’s Internet Advertising Guidelines (Application of the Competition Act to Representations on the Internet), which was last updated back in 2009 (though has not been substantially updated in some years).
The FTC’s new guidance for mobile and other online advertisers, which updates its Dot Com Disclosures released back in 2000, not only explains how advertisers can make sure their products and services are described truthfully online, but more specifically takes smart phone and social media marketing into account.
The FTC’s new .com Disclosures: How to Make Effective Disclosures in Digital Advertising provides a number of best practices for disclosures in mobile ads and highlights the need for advertisers to make those disclosures clear and conspicuous.
Some of the FTC’s tips, many (if not most) of which are also applicable in Canada, include:
Place disclosures [i.e., disclaimers as we call them in Canada] close to claims they qualify in an online ad: Consumers using devices with small screens may miss disclosure hyperlinks that are separated from a claim by text or graphics, so advertisers should be sure to place the link near the relevant information. This is good advice for conventional advertising, and particularly important guidance for advertising using new media (including for Canadian advertisers/marketers).
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.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
