It seems that a lot of time recently has been spent debating whether the price of products should be fully disclosed in advertising (and that many cases and regulatory announcements have turned on this apparently, but perhaps not so, simple question).
For example, last year in June, Bell Canada entered into a settlement (a consent agreement) with the Competition Bureau and agreed to stop making allegedly misleading claims relating to the prices for its services and pay an administrative monetary penalty of C $10 million. According to the Bureau, Bell charged higher prices than advertised for many of its services, including home phone, Internet, satellite TV and wireless (see: Bell Canada Agrees to Pay $10 Million Fine in Misleading Advertising Case).
Then late last year, the Conservative Government announced that airlines would be required to disclose the full price of airline fares by the end of 2012 (including airport taxes and additional charges), pursuant to (long-anticipated) regulations under the Canada Transportation Act (see: Federal Government to Introduce Advertising Regulations for Airlines).
Moses & Singer LLP (New York) recently published what I thought was a rather fine comparative law article on greenwashing, entitled The Greenwashing Domino Effect, which includes a discussion of pro-active regulatory steps being taken in Canada.
The Greenwashing Domino Effect
– By Devika Kewalramani & Richard J. Sobelsohn (first published on Thomson Reuters News & Insight; reprinted with permission)
Look at these labels: “Eco-Friendly,” “Organic,” “Natural” and “Green.” Do they say what they mean and mean what they say?
WHAT IS “GREENWASHING”?
“Greenwashing” is a novel word that merges the concepts of “green” (environmentally sound), and “whitewashing” (to gloss over wrongdoing), to describe the deceptive use of green marketing that promotes a misleading perception that a company’s policies, practices, products or services are environmentally friendly. “Greenwashing” officially became part of the English language in 1999 with its entry into the Oxford English Dictionary. It defines the term as “disinformation disseminated by an organization so as to present an environmentally responsible public image.” The term is generally used when an organization expends more time and resources marketing their “greenness” than actually adopting procedures that are environmentally beneficial. It includes the practice of misleading customers regarding the environmental advantages of a specific product or service through deceptive advertising and unsubstantiated claims.
Private Action Update: Lack of Injury to Competition Dooms Real Estate Multiple Listing Service Case
With all the recent activity in the real estate services sector in Canada, which has included cases brought by the Competition Bureau against The Canadian Real Estate Association (CREA), The Toronto Real Estate Board (TREB) as well as the ongoing Realtysellers private action challenge of CREA and TREB, the recent U.S. MLS case note by Stein, Mitchell & Muse LLP below caught my eye.
(For more about the Canadian real estate cases see: Hearing dates set in The Commissioner of Competition v. The Toronto Real Estate Board, Realtysellers lawsuit against CREA and TREB survives motion to dismiss, Competition Tribunal grants CREA leave to intervene in TREB abuse of dominance case, Competition Bureau amends its abuse of dominance case against The Toronto Real Estate Board).
The case, in which an internet-based real estate agent’s case against a multiple listing service, an association of real estate brokers and competing real estate agents was dismissed, involves interesting association and intellectual property law related issues.
The plaintiff’s case was ultimately unsuccessful based on a failure to adequately plead and show antitrust injury. The District Court for Minnesota held that, like Canada, where actual damage or loss is a prerequisite to commencing a private civil action under the Competition Act, that the law was clear that antitrust standing requires a showing of antitrust injury, which is injury of the type the antitrust laws are intended to prevent and which flow from that which makes the acts unlawful.
By Michelle Chan – Consumer Protection BC
– Reprinted with permission
Now that all the New Year festivities have died down and we are making our way through the first weeks of 2012, here is an overview of the Top 10 Scams to watch out for. This list was created in collaboration with Consumer Protection BC, the Better Business Bureau of the Lower Mainland and the BC Crime Prevention Association.
1. Brand Spoofing. Brand spoofing (aka “phishing”) happens when scammers create false website or send consumers e-mails or text messages from what appear to be well-known and trusted businesses. When a consumer provides information to these fake sources, scammers gain access to private information such as SIN numbers or bank PIN numbers.
The Competition Bureau announced today that the pre-merger notification size of transaction threshold for 2012 will increase to C $77 million (increased from C $73 million in 2011). The 2012 size of transaction threshold will come into effect on about February 11, 2012 following publication in the Canada Gazette.
The Competition Bureau announced today that it will begin publishing monthly reports of concluded merger reviews, which the Commissioner of Competition Melanie Aitken had referred to in recent public statements.
In making the announcement the Bureau said:
“The report will contain a list of merger reviews concluded in the prior month where: a pre-merger notification was made under section 114 of the Competition Act; and/or a request was made for an advance ruling certificate under section 102 of the Act.
The report will provide the names of the parties to the transaction, the industry sector involved, and the result of the Bureau’s review.
The first report, for the month of February 2012, will be published at the beginning of March and at the beginning of each month thereafter.”
This announcement is the latest in a number of recent merger related initiatives by the Bureau, which have included a recent Merger Remedies Study Summary, newly updated Merger Review Process Guidelines and Merger Enforcement Guidelines and new Hostile Transactions Interpretation Guidelines.
By William Wu (Centre for Innovation Law and Policy)
Google has announced its new privacy policy, which will take effect on March 1. Google is doing away with the over 60 different existing privacy policies for its various products and replacing them with one single shorter and simpler privacy policy.
Those who are most affected by this change are people with Google accounts. Under the new privacy policy, if a user is signed in to the Google account, Google will be able to collect and combine user information from across its various products and services. For example, Google will be able to collect and analyze your search terms on the Google search engine and suggest related videos when you next go onto YouTube. This will enable Google to form fuller and more comprehensive user profiles. As Google emphasized in its announcement, this change will allow it “to create one beautifully simple and intuitive experience across Google.”
News and upcoming events from our friends at the Canadian Council on International Law (CCIL) in Ottawa:
“Mini-Conference”. Montreal, March 8, 2012. In celebration of, and cooperation with, the Canadian round of the Jessup, the CCIL is holding a mini-conference in Montreal, integrated with the Jessup competition. This conference is free to CCIL members, and those who become CCIL members between now and then. (If you attended the November conference, you are a member. If not, please follow the link below to find out more about becoming a member.) The conference will address themes drawn from this year’s Jessup problem and from both the CCIL 2011 conference (culture and international law) and the 2012 conference (international law and crises and emergencies). For more see: CCIL – Mini-conference
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
