Archive for the 'Publications' Category
Last week the Advertising Standards Canada released its fourth annual Compliance Report on the Canadian Children’s Food and Beverage Advertising Initiative (see: Advertising Standards Canada releases 2011 Compliance Report on Canadian Children’s Food and Beverage Advertising Initiative).
The Initiative was launched by members of Canada’s food and beverage industry in 2007 in an effort to shift the landscape of advertising directed to children under 12 to the promotion of “better-for-you products”.
Under this Initiative, which includes advertising in all major media (as well as children focused media such as video, computer games and DVDs), participants have committed to either not direct advertising primarily to children under 12 or shift advertising to promote products that are “consistent with the principles of sound nutrition guidance.” The Initiative includes specific nutrition criteria (e.g., foods that reflect the dietary guidelines of Canada’s Food Guide or nutrient content claims of the Canadian Food Inspection Agency’s Guide to Food Labelling and Advertising). Participants in this initiative have also agreed to certain other commitments, such as reducing the use of 3rd party licensed characters used to promote non-Initiative approved products, not advertising in elementary schools or paying for product placements in programs directed at children.
According to the ASC, some participants have stopped child-directed advertising altogether (the 19 food and beverage company participants include Burger King, Campbell’s, Coke, General Mills, Hershey, Kellogg, Kraft, Mars, McDonald’s, Nestle, Pepsi, Post, Unilever and Weston). Others have launched new “better-for-you” advertising initiatives. No product in the ASC’s Initiative is more than 200 calories and every meal is less than 600 calories.
The regulation and self-regulation of food and children’s advertising and labeling is governed in Canada by, among other things, the federal Competition Act, Food and Drugs Act and Consumer Packaging and Labelling Act, as well as the Canadian Food Inspection Agency’s Guide to Food Labelling and Advertising and the ASC’s Broadcast Code for Advertising to Children and Canadian Code of Advertising Standards (which contains specific rules relating to advertising for children).
For a copy of the ASC’s new report see: Canadian Children’s Food & Beverage Advertising Initiative.
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In an interesting speech on September 14, 2012 by the Acting Assistant Attorney General of the U.S. DoJ’s Antitrust Division, Joseph Wayland discussed the continuing cooperation between U.S. and international enforcement agencies (including Canada), including in relation to the auto parts, air cargo, LCD and e-book cartel investigations and Google/Motorola and UT/Goodrich mergers.
In his speech, he emphasized three key drivers for international cooperation between agencies: increased understanding of the competitive process, increased efficiency for global enforcement and facilitating pro-consumer economic activity. The speech also discusses the increase of leniency programs globally and some of the strategic rationales for inter-agency cooperation.
For a copy of the speech see: International Cooperation at the Antitrust Division.
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Edward Elgar has published a new handbook on U.S. private antitrust enforcement entitled Private Enforcement of Antitrust Law in the United States. Overview:
“Private Enforcement of Antitrust Law in the United States is a comprehensive Handbook, providing a detailed, step-by-step examination of the private enforcement process, as illuminated by many of the country’s leading practitioners, experts, and scholars.
Contributors: W.K. Arends, A.C. Briggs, W.J. Bruckner, P.B. Clayton, C.C. Corbitt, E.L. Cramer, M.B. Eisenkraft, A.A. Foer, A.J. Gaughan, P. Gilbert, J. Goldberg, D.E. Gustafson, M.D. Hausfeld, K. Kinsella, R.H. Lande, J. Langenfeld, S. Martin, K.J.L. O’Connor, H.L. Renfro, J.D. Richards, V. Romanenko, J.L. Rubin, M.R. Salzwedel, A.E. Shafroth, D.C. Simons, S.P. Slaughter, R.M. Stutz, B.E. Sweeney, J. Tabacco, M.J. Waters, S. Wheatman, K.C. Wildfang, G.G. Wrobel, J.A. Zahid
Private Enforcement of Antitrust Law in the United States is a comprehensive Handbook, providing a detailed, step-by-step examination of the private enforcement process, as illuminated by many of the country’s leading practitioners, experts, and scholars. Written primarily from the viewpoint of the complainant, the Handbook goes well beyond a detailed cataloguing of the substantive and procedural considerations associated with individual and class action antitrust lawsuits by private individuals and businesses. It is a collection of thoughtful essays that delves deeply into practical and strategic considerations attending the decision-making of private practitioners. This eminently readable and authoritative Handbook will prove to be an invaluable resource for anyone associated with the antitrust enterprise, including both inexperienced and seasoned practitioners, law professors and students, testifying and consulting economists, and government officials involved in overlapping public/private actions and remedies.”
For more information and ordering details see:
Private Enforcement of Antitrust Law in the United States
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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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September 13, 2012
The Canadian Corporate Counsel Association recently published a new article on Canada’s impending (but when?) new anti-spam legislation, entitled Canada’s Anti-spam Law: Filtering Relationships (by Yves Faguy).
The Montreal Economic Institute has published a new report on competition in the Canadian wireless sector entitled “Is the Canadian Wireless Sector Competitive”.
Introduction:
“Nearly two decades after having decided that it was not necessary to regulate the wireless telephone sector, the Canadian Radio-television and Telecommunications Commission (CRTC) decided this past April to revisit its decision and hold public consultations on the matter. It should soon announce whether or not it believes that formal regulation is required to ensure that the sector remains competitive. Wireless telephony now includes data transmission and has become a competitive factor for businesses in an environment in which communications technologies are developing rapidly.
Some observers of the Canadian wireless sector, basing themselves on certain Canadian and international studies, maintain that the sector is not competitive enough and that more regulation is required to force providers to lower prices, increase download speeds and improve service quality. These critics also believe that Canadian consumers are at a disadvantage compared with consumers in other developed countries and that Canada is constantly losing ground in terms of innovation, penetration rates and investment in infrastructure. At a time the CRTC is asking itself whether it should regulate the wireless sector, it is appropriate to look at the state of this industry in Canada.”
For a copy of the report see: Is the Canadian Wireless Sector Competitive?
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The U.K. Office of Fair Trading published an interesting new report yesterday on the potential competition law implications of “price relationship agreements” – for example, where some sellers choose to adopt pricing policies or enter agreements that limit their freedom to price independently, without express coordination with competitors. The OFT’s new report, entitled Can ‘Fair’ Prices Be Unfair? A Review of Price Relationship Agreements, focuses on three types of “price relationship agreements” as follows:
1. Across-sellers agreements – where sellers, for example, promise customers to match (or beat) the price that customers may find for the same or a similar product sold by other sellers.
2. Across-customers agreements – such agreements may include, for example, where a manufacturer of a product is contractually bound to offer a retailer the best price it offers to other retailers (i.e., MFN provisions).
3. Third party agreements – price relationship agreements that are entered into, for example, by manufacturers and retailers, which determine the price paid by customers (e.g., an agreement under which a retailer agrees to set the price at which it resells a manufacturer’s products with reference to the price at which it sells the products of a competing manufacturer).
The OFT’s new report considers, among other things, how such agreements may have a dampening effect on competition or discourage or prevent new entry.
From the OFT (from the Executive Summary):
“In a competitive environment sellers set their price independently of each other, though considering that the prices of their rivals will have an impact on their sales. However, sometimes sellers commit to pricing policies that limit their freedom and that link their prices to other prices charged for the same (or similar competing) products. These types of pricing policies do not determine absolute price level, but set pricing relativities, thus linking different prices to each other. Examples of such pricing policies are price-match guarantees and lowest price promises (which are price commitments ‘across-sellers’) or most favoured nation clauses (which are price commitments ‘across-buyers’). This report explores the possible implications for competition policy of these kind of agreements: it examines the various forms these agreements can take and explores the competition concerns they raise, together with their potential benefits.”
For a copy of the report see: Can ‘Fair’ Prices Be Unfair? A Review of Price Relationship Agreements.
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Flipping through The Lawyers Weekly today, which as a bit of an aside seemed to me to have a slightly spiffier look, several new Canadian regulatory and IP law texts caught my eye:
Canadian Food and Drug Legislation & Commentary (2012) (LexisNexis)
“Canada’s leading compilation of federal food and drug laws. Food and drug legislation is a critical part of Canada’s national regulatory framework. Consumers of foods, drugs, medical devices, and cosmetics look to this system to ensure that regulated products meet all health and safety standards. Thousands of professionals have a responsibility to interpret and apply the statutes and regulations in this extremely complex area of law. Canadian Food and Drug Legislation meets the research and reference needs of this growing group. This unique compilation includes the most up-to-date Food and Drugs Act and all related federal statutes and regulations. A detailed index further simplifies your research. The commentary, prepared by Borden Ladner Gervais LLP, which has one of Canada’s largest food and drugs practices, explains the legal framework and recent developments, and gives an overview of each part and division of the key legislation as follows: Food and Drugs Act and all regulations under the Act; Consumer Packaging and Labelling Act and Regulations; Controlled Drugs and Substances Act and Regulations; Canada Agricultural Products Act and Regulations.”
Halsbury’s Laws of Canada – Patents, Trade Secrets and Industrial Designs (2012) (LexisNexis)
“In the age of information, the ability to protect a client’s rights in intellectual property can be as important as the creation of that property itself. Like a right without a remedy, a proprietary asset without legal recognition may be no asset at all. So, while patent applications or industrial design issues may be best left to intellectual property specialists, a sound appreciation of the law and the issues shouldn’t be. Newly revised and thoroughly updated, Halsbury’s Laws of Canada – Patents, Trade Secrets and Industrial Designs (2012 Reissue) is the ideal source for authoritative commentary on this always important subject. Authored by two of Canada’s leading intellectual property experts, it clearly delineates the law governing patents of invention in Canada, as codified by the Patent Act, as well as the law pertaining to trade secrets and industrial design.”
For more information and ordering details see: Canadian Food and Drug Legislation and Patents, Trade Secrets and Industrial Designs.
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Venable LLP (Jeffrey S. Tenenbaum and Andrew E. Bigart) have published an interesting new trade association and antitrust law related article entitled “Knockin’ on Your Association’s Door: What You Need to Know About Membership Restrictions and the Antirust Laws”, which discusses the application of antitrust laws to some types of association activities including membership restrictions, membership qualifications, codes of ethics, access restrictions to association services and, interestingly, restrictions on access to association trade shows.
Abstract:
“Groucho Marx famously said, “I don’t care to belong to any club that will have me as a member.” Associations frequently take this sentiment to heart by establishing membership restrictions and other limits on access to association services or events. These restrictions come in many shapes and sizes – limiting membership to a specific trade, profession, or market function; imposing geographic limitations; or requiring professional certification, state or federal licensure, or adherence to a code of ethics, to name just a few.
These restrictions often serve a legitimate purpose by helping the association function effectively and focusing its efforts on benefiting an industry or profession with common interests. At the same time, however, these restrictions potentially limit competition by excluding others from participating in association activities. Although courts usually are reluctant to interfere with internal association rules and decisions, an association’s establishment of membership restrictions or qualifications may raise legal concern under the antitrust laws.
This article provides a brief overview of the antitrust laws as they apply to membership restrictions, along with some suggested practices for minimizing potential liability.”
For a copy of this rather good article see:
Association Membership Restrictions in Canada
Association membership restrictions can raise competition law concerns in Canada as well. While in many instances legitimate, objective and non-discriminatory membership criteria are unlikely to raise concerns, issues can arise if associations attempt to exploit their membership criteria to restrict competition.
Membership criteria can be used to limit or restrict competition in several ways, such as if they are designed (or applied) to artificially restrict entry into an industry or profession, refuse a competitor access to competitively significant resources owned or operated by the association (sometimes referred to as “essential facilities”) or to limit or restrict members’ business structures or scope of practice (which can sometimes arise from standard-setting efforts by associations).
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
