Archive for the 'Advertising' Category
CANADIAN CONTEST RULES/PRECEDENTS
Do you need contest rules and forms for a Canadian contest/sweepstakes?
We 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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On February 28, 2012, the Supreme Court of Canada awarded compensatory and punitive damages to a contest entrant for misleading claims in a contest mail-out (see: Jean-Marc Richard v. Time Inc. and Time Consumer Marketing Inc.).
The decision is interesting not only that a contest case made it to the Supreme Court, but that our highest court also allowed punitive damages. The Supreme Court also had interesting comments in this Quebec Consumer Protection Act case regarding the importance of the “general impression” test for evaluating advertising (the “general impression” is also relevant for evaluating whether advertising is false or misleading under the federal Competition Act).
In this case, the plaintiff received an “Official Sweepstakes Notification” that suggested he won USD $833,337. The prize notification letter included conditional clauses which began “If you have and return the Grand Prize winning entry in time” and information that the recipient would qualify for a $100,000 bonus prize if the entry was validated within five days. The mailing also included the official rules in small print and an offer to subscribe to Time magazine. The rules provided that a winning number had been pre-selected by computer and that the holder of the number could receive the grand prize only if the reply coupon was returned by the deadline (otherwise the prize winner would be selected by random draw from all eligible entries with odds of winning of about 1 in 120 million).
The plaintiff returned the coupon and subscribed to Time. Though he began receiving his magazines, no cheque arrived. Contacting Time, he was told that he would not be receiving a cheque, his document had not contained the winning entry for the draw and was merely an invitation to participate in the sweepstakes.
The Competition Bureau announced earlier today that it was kicking off Fraud Prevention Month with a series of panel discussions on fraud prevention across Canada that will assemble experts from law enforcement agencies, academics and business and consumer groups.
In making the announcement, the Bureau said:
“The Competition Bureau is organizing a series of panel discussions on fraud prevention across Canada that will bring together experts from law enforcement agencies, academia, as well as businesses and consumer groups. The focus of these discussions will be on practical strategies for fighting fraud and raising awareness so that Canadians can protect themselves in the marketplace, particularly in the online and mobile environments. These events will take place at the University of Ottawa on March 6, at the University of Alberta in Edmonton on March 8, and at Concordia University in Montreal on March 13.
Fraud is a crime that affects individuals, businesses and the economy as a whole. ‘It’s a matter of confidence,’ said Melanie Aitken, Commissioner of Competition. ‘Consumers need to know enough to make informed purchasing choices, based on advertising that is truthful and complete.’
The Competition Bureau, along with the Fraud Prevention Forum, plays an important role in helping Canadians get the information they need to be informed and confident consumers. Consumers also have a role to play in stopping fraud by arming themselves with the facts and reporting fraud when they encounter it.
The Fraud Prevention Forum, chaired by the Competition Bureau, is comprised of more than 125 private sector firms, consumer and volunteer groups, government agencies, and law enforcement organizations that have come together to help combat fraud and raise awareness. During Fraud Prevention Month, Forum members will participate in a number of targeted activities across the country, designed to raise awareness among consumers and businesses about the dangers of fraud.”
Recent fraud related cases that the Bureau has been involved in include bid-rigging (see: here and here), price-fixing (see: here, here, here, here, here and here), market division (see: here), deceptive telemarketing (see: here and here) and deceptive marketing cases (see: here and here).
A few interesting advertising and marketing law developments that caught my eye today included:
Canadian Transportation Agency Wraps up Consultations on Air Services Price Advertising Regulations
The Canadian Transportation Agency wrapped up its public consultations on its Air Services Price Advertising Regulations on February 26th. The input that the CTA received from its consultations will contribute to new airfare price advertising regulations, to be published in the Canada Gazette in the coming months. The CTA’s initiatives in the airline sector are consistent with a more general effort by other enforcement agencies, including the Competition Bureau, to ensure that the total price for goods and services is disclosed for consumers (the recently settled Bell case being perhaps the most conspicuous example). For more see: Canadian Transportation Agency – Air Services Price Advertising Regulations.
Real Estate Council of British Columbia February Report – Advertising Compliance Reminder
In the Real Estate Council of British Columbia’s interesting February newsletter, the Council kicks off its updates and summaries of disciplinary cases with a summary of advertising law compliance and some examples of recent discipline. The Council’s note is a reminder that advertising in Canada is governed not only by the Competition Act and other general “framework” legislation, including consumer protection legislation, but also by a variety of industry and sector specific rules – in the case of real estate licensees in British Columbia, this includes the Real Estate Council’s Rules (see: Real Estate Council Rules).
REALTORS® in British Columbia are also subject to the CREA Code and other specific rules including, for example, the CRTC’s Unsolicited Telecommunications Rules and the new anti-spam legislation (Bill C-28), once in force, if engaging in electronic marketing.
Some of the concerns and cases discussed in the Council’s February newsletter include where advertising failed to include the name of the brokerage, the advertising of unapproved team names and a general reminder not to engage in misleading advertising (see: Report From Council).
U.S. Federal Trade Commission to Host Public Workshop to Explore Online Advertising Disclosures
The Federal Trade Commission announced today that it would hold a public workshop to explore advertising disclosures in online and mobile media on May 30, 2012.
Given the increasing cooperation between the Competition Bureau and international enforcement agencies, including the U.S. FTC and DoJ, as well as the increasing level of convergence in regulation generally (particularly the regulation of Internet and new media), this upcoming FTC workshop caught my eye.
This U.S. FTC announcement today also made me wonder whether the Canadian Competition Bureau has plans to update its own Internet advertising guidelines. While these were updated to reflect Competition Act amendments in 2009, significant substantive changes to these guidelines, in terms of new media and evolving technologies, have not been made since they were issued in 2003 (see: Application of the Competition Act to Representations on the Internet).
Advertising Standards Canada’s recent complaint case summaries (October 1, 2011 to February 29, 2012) are available on ASC’s website.
Recent identified advertiser cases have involved 7-Eleven Canada Inc., Extreme Fitness, Shoppers Drug Mart, Stokes International, Virgin Mobile, eBay Canada and K-97 Classic Rock, among others.
The majority of recent ASC complaints made under the Canadian Code of Advertising Standards relate to the accuracy and clarity of ads (section 1). Other complaints have recently been made under sections 3 (price claims), 11 (superstition and fears) and 14 (unacceptable depictions and portrayals).
ASC’s case summaries include both identified and non-identified advertisers (cases where advertising was either not withdrawn or withdrawn before being reviewed by ASC).
ASC is a national not-for-profit advertising self-regulatory body that administers and enforces the Canadian Code of Advertising Standards, which provides a uniform set of rules for accurate advertising in Canada and under which consumer and trade complaints can be made (see e.g.: Consumer Complaints).
ASC also provides a fee-based advertising pre-clearance review service in five regulated areas of advertising: children’s, food and non-alcoholic beverages, alcoholic beverages, consumer drugs and cosmetics (see: ASC Clearance Services).
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FEBRUARY 29, 2012
The American Bar Association (the Private Advertising Litigation, Consumer Protection and Privacy & Information Security Committees) is holding a teleseminar on February 29, 2012 entitled: “Hot Legal Issues in Social Media Marketing”.
From the ABA:
“Do you want to run a multinational promotion for tweens on Facebook to post videos of their experiences using your product? How about giving rewards to the “mayor” of your store locations on 4-Square? (Or maybe you are asking “What is that?”) Join an expert panel for a fast and furious hour and a half discussing current issues with marketing via social media and resources for your use in counseling through this minefield. The discussion will include new technologies (like 4-Square), marketing to kids, how CAN-SPAM and/or COPPA touch social media, the impact of FTC endorsement/testimonial guidelines, sweepstakes/contest laws, and more!”
On February 24, 2012, Canada’s Privacy Commissioner Jennifer Stoddart sent an open letter to Google to request additional information about Google’s new privacy policy and set out some concerns. The Commissioner’s letter follows a meeting between representatives of the Office of the Privacy Commissioner and Google (see: Letter to Google regarding privacy policy changes).
As has been widely reported, Google is taking steps to reduce the number of its privacy policies (currently over 70) relating to its many products to a single general privacy policy (while retaining some product-specific privacy policies) (see e.g.: Advertising Update: Google’s New Privacy Policy).
In making the announcement, the Commissioner said:
“I am writing further to Google’s recently announced plans to change its privacy policy, effective March 1, 2012, and further to a meeting between a representative of Google and officials from my Office. I am pleased to take this opportunity to provide you with some of our feedback and to request some additional information on certain practices.
As we understand it, Google has a number of goals that it wishes to achieve through this effort. Primarily, the company is aiming to reduce the number of privacy policies that currently exist (over 70) in relation to its many different products and services to one general privacy policy. In addition to that general policy, Google will still retain a small number of product-specific policies (e.g., for Google Wallet) where it believes that this makes sense or is otherwise required by law. The other goals are to create a simpler, more intuitive user experience across multiple Google products; improve search results; and make ads more relevant.
I would first like to acknowledge Google’s efforts to alert users to the new policy. Google has worked hard to simplify and streamline its privacy policy. We have long been calling for better, more user-friendly privacy policies and yours is a step in the right direction. We do, however, have a number of questions and concerns, as outlined below, that we would appreciate receiving a response from you on.”
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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February 24, 2012
In December 2010 Canada’s new anti-spam legislation was passed (the “Anti-spam Act”) which will, when it comes into force, be one of the strictest anti-spam regimes in the world (see: Anti-spam Act). The Anti-spam Act will require express or implied consent for the sending of “commercial electronic messages” or “CEMs” and also impose form (i.e., disclosure) and unsubscribe requirements for CEMs.
On February 23, 2012, the U.S. Federal Trade Commission (“FTC”) announced that it had obtained a USD $359 million settlement order against an Alberta online marketer (Jessie Wilms) and related defendants.
In making the announcement, the FTC said:
“The Federal Trade Commission has stopped an Internet scheme that allegedly used bogus “free” product offers that deceived consumers in the United States and other countries and charged them for products and services they did not want or agree to purchase. A settlement order, reached as part of the FTC’s ongoing efforts to stamp out online marketing fraud, permanently bans Jesse Willms and his companies from using ‘negative-option’ marketing, a practice in which the seller interprets consumers’ silence or inaction as permission to charge them. The Willms settlement order imposes a judgment of $359 million that will be suspended upon Willms’s surrender of bank account funds and proceeds from the sale of his house, personal property, and corporate assets, including a Cadillac Escalade, fur coat, and artwork.
‘The fact that almost four million consumers fell prey to the lure of these ‘free trial’ offers is a stark reminder that ‘free’ offers can come at a huge price,’ said David Vladeck, Director of the FTC’s Bureau of Consumer Protection. ‘The FTC has stopped about $1 billion in online marketing fraud during the past two years by shutting down operations like this. But consumers still need to beware, because scam artists are constantly coming up with new ways to deceive people online.’”
According to the FTC, it worked with Canadian law enforcement officials, including the Alberta Partnership Against Cross-Border Fraud and Competition Bureau.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
