The Canadian Society of Association Executives (CSAE) will be holding its annual National Conference in Ottawa on November 1-3, 2012.
I am pleased to be co-presenting a seminar on Practical Competition Law and Compliance Case Studies for Trade and Professional Associations with the co-author (Mark Katz) of our new associations book (The Competition Law Guide for Trade Associations in Canada):
“Although most association activities are benign from a competition law perspective, they can raise serious issues in a variety of circumstances that occur on a regular basis. This presentation will review the key provisions of Canada’s Competition Act relevant to trade and professional associations and offer practical guidance on how to reduce risk based on a series of practical and interactive case studies derived from actual Canadian and international examples.
The focus of the case studies will be on real-life association activities that can attract liability if not conducted in an appropriate fashion. Issues to be covered include: (i) when will a purely voluntary or suggested fee tariff/schedule become problematic; (ii) ways associations can engage in joint negotiations or advocacy initiatives on behalf of members without raising competition issues; (iii) how associations can reduce the risk of engaging in information exchanges (e.g., research or benchmarking exercises); (iv) how to structure association membership restrictions and discipline procedures; and (v) what to do to distinguish pro-competitive standard-setting from conduct that can raise competition concerns.
The Competition Bureau has updated its organizational chart with John Pecman (formerly head of the Criminal Matters Branch) as Acting Commissioner of Competition. From the Bureau:
“John Pecman is Acting Commissioner of Competition.
The Commissioner is responsible for the administration and enforcement of the Competition Act and three labelling statutes, the Consumer Packaging and Labelling Act, the Precious Metals Marking Act and the Textile Labelling Act.
Under the Competition Act, the Commissioner can launch inquiries, challenge civil and merger matters before the Competition Tribunal, make recommendations on criminal matters to the Director of Public Prosecutions of Canada (DPP), and intervene as a competition advocate before federal and provincial bodies.
As head of the Canadian Competition Bureau, the Commissioner leads the Bureau’s participation in international fora such as the Organization for Economic Cooperation and Development (OECD) and the International Competition Network (ICN), to develop and promote coordinated competition laws and policies in an increasingly globalized marketplace.
CANADIAN CASL (ANTI-SPAM LAW) PRECEDENTS
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September 23, 2012
I’ve been seeing an increasing flutter of updates and newsletters recently discussing the status of Canada’s new (though still unclear when) anti-spam legislation (“CASL”). So I thought I would have a poke around the web, see what Industry Canada, the CRTC, the Competition Bureau and Privacy Commissioner’s office have been up to lately and post a few thoughts on the progress of the new law that is inching along, some recent developments and practical steps that can be taken before the law is in force.
In speaking to some industry groups recently, I’ve had some questions about provincial licensing requirements for telemarketing (and who the rules apply to and the basic requirements).
Most companies engaged in telemarketing (as well as the agencies and lawyers assisting and advising them) will already be well aware of the federal requirements under the Competition Act and National Do Not Call List (see: Telemarketing).
Less well known, I’ve recently found, is the fact that in British Columbia, a third level of regulation may apply: the Telemarketer Licensing Regulation (the “Telemarketer Regulation”) under the British Columbia Business Practices and Consumer Protection Act (“BPCPA”).
In general, all telemarketers conducting business in British Columbia (or contacting British Columbia consumers by phone or fax) to enter distance sales contracts are subject to the Telemarketer Regulation. The Regulation also applies to telemarketers that contact BC consumers to solicit consumers for contributions on behalf of 3rd party suppliers – for example, 3rd party fundraisers.
“Distance sales contracts” are defined as: “contracts for the supply of goods or services between a supplier and a consumer that [are] not entered into in person and, with respect to goods, for which the consumer does not have the opportunity to inspect the goods that are the subject of the contract before the contract is entered into, but does not include a prepaid purchase card.”
Telemarketers are required to have licences for each location (which must be displayed), fulfill certain reporting obligations (including new employee identity and contact information and changes in senior officers or corporate control) and are subject to record-keeping requirements (including customer names and contract details).
The Telemarketer Regulation also limits the days and times for telemarketing calls and the frequency and manner of calls (for example, telemarketers cannot call on statutory holidays, outside of specified hours during weekdays or on weekends or block their numbers).
Exemptions from the licensing requirement include charities, educational institutions, banks and credit unions, political organizations and survey firms.
For more information about the provincial licensing and regulation of telemarketers in British Columbia see: Consumer Protection BC – Telemarketing Portal, Do Not Call – Telemarketers, Charities and Telemarketing – Avoiding Scams, Telemarketer Licensing Regulation, Telemarketing in BC – The Basics, Questions to Ask a Telemarketer.
We help individuals and companies comply with Canadian advertising and marketing laws, including Canada’s telemarketing laws.
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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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On September 20, 2012, Canada’s intelligence agency, the Canadian Security Intelligence Service (CSIS), issued its 2010-2011 Public Report.
In light of the ongoing federal review of the CNOOC/Nexen transaction, heightened debate regarding the conditions for state-owned-enterprise (“SOE”) investment in Canada and fact that some Canadian investments can be subject to a national security review, the following discussions of the Investment Canada Act, SOEs and Canadian national security caught my eye:
“Some foreign investments in Canada can also pose wider national security concerns. The Investment Canada Act provides the Government of Canada with a mechanism to ensure that foreign investments are within Canada’s national security interests. CSIS plays a contributing role by advising government of the national security implications that might arise from a proposed foreign investment.
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A related security issue is one of foreign investment. Canada is a trading nation, with economic wealth, advanced infrastructure and vast potential – all of which make Canada a natural and attractive prospect for foreign investors. While the vast majority of foreign investment in Canada is carried out in an open and transparent manner, certain state-owned enterprises (SOEs) and private firms with close ties to their home governments have pursued opaque agendas or received clandestine intelligence support for their pursuits here.
When foreign companies with ties to foreign intelligence agencies or hostile governments seek to acquire control over strategic sectors of the Canadian economy, it can represent a threat to Canadian security interests. The foreign entities might well exploit that control in an effort to facilitate illegal transfers of technology or to engage in other espionage and other foreign interference activities. CSIS expects that national security concerns related to foreign investment in Canada will continue to materialize, owing to the increasingly prominent role that SOEs are playing in the economic strategies of some foreign governments.”
For a copy of CSIS’ report see: CSIS – Public Report 2010-2011.
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On September 20, 2012, the Competition Bureau issued new final Abuse of Dominance Guidelines (see: Competition Bureau Issues Abuse of Dominance Guidelines).
The Bureau’s new Guidelines replace its former 2001 Guidelines and are the result of some fairly significant public consultations, including comments from the Canadian and U.S. competition/antitrust law bars and criticism for, among other things, providing significantly less guidance than in the past (see: here).
The Bureau’s new Abuse of Dominance Guidelines also replace a number of final and draft sector and conduct specific guidelines and bulletins (the Draft Enforcement Guidelines on Abuse of Dominance in the Airline Industry, The Abuse of Dominance Provisions as Applied to the Grocery Sector, Information Bulletin on the Abuse of Dominance Provisions as Applied to the Telecommunications Industry and Predatory Pricing Enforcement Guidelines).
Some of the aspects of the Bureau’s new Guidelines that caught my eye include:
Length. The most striking feature of the new Guidelines is their length – they are substantially shorter and provide significantly less analysis and examples compared to the former Guidelines. Gone as well is the prior appendix summarizing Canadian abuse of dominance cases to date, which had included summaries of the relevant facts, markets, anti-competitive acts and remedies ordered (or negotiated) in abuse of dominance cases since Canada’s modern abuse of dominance provisions were introduced in 1986.
Absence of bright-line safe harbours. The new Guidelines provide little comfort around market share thresholds for single or joint dominance. In this regard, the Bureau takes the position, with respect to single firm dominance, that a market share of less than 35% will generally not prompt further examination; a market share between 35% and 50% will generally only prompt further examination if it appears that a firm is likely to increase its market share through the alleged anti-competitive conduct within a reasonable time; and a market share of more than 50% will generally prompt further examination. With respect to joint dominance, the Bureau takes the position in the new Guidelines that a combined market share of 65% or more will generally prompt further examination. While the Bureau has raised the threshold over which it will generally more closely examine conduct (from 35% to 50%), the new final Guidelines do not adopt recommendations made during the comment period to adopt bright-line safe harbours below which it would not commence enforcement. In this regard, the Bureau has essentially preserved its position from its previous 2001 Guidelines that it could conclude that market power exists below 35% (though it is difficult to see the circumstances where this would be so).
Potential for investigation in the absence of dominance. Despite criticism from some during the comment period, the Bureau has retained language in the final Guidelines that it may investigate abuse of dominance allegations even where a firm does not “presently appear to have market power.” The Bureau also states: “While the Bureau will not commence an application under section 79 of the Act where a firm does not presently appear to have market power, the Bureau will generally investigate allegations of abuse of dominance if it appears a firm is likely to obtain market power through an alleged practice of anti-competitive acts within a reasonable period of time.” As has been pointed out by some commentators, it is not clear where the authority for this approach originates given that the first element under section 79 requires that one or more firms substantially or completely control a market (or markets) – i.e., the requirement is current, not prospective, market power. It would also seem that at least one possible obvious result could be smaller firms (with shares under 35%) facing a Bureau investigation where the Bureau’s view was that alleged anti-competitive acts could lead to market power within a “reasonable period of time”. This aspect of the final Guidelines would both seem to markedly expand the circumstances in which the Bureau may take enforcement action and also provide significantly less comfort to smaller firms that, while they may not yet possess anywhere near the market presence to be reasonably considered dominant, may be engaged in vigorous competitive behavior that generates complaints or Bureau attention.
The Competition Tribunal has issued its decision in the TREB abuse of dominance case responding to TREB’s attempt to have a Notice of Constitutional Question heard by the Tribunal.
In refusing to “entertain” TREB’s Notice, which TREB attempted to file with the Tribunal on August 24th (and which the Tribunal refused to accept for filing – see: here), the Tribunal held that the constitutional issues raised by TREB should not be heard on the basis that it contravened the Tribunal’s scheduling order (made on consent), there was no justification for the delay (and that TREB had failed to offer any satisfactory explanation for a breach of the order) and that a disruption of the hearing was likely.
TREB’s Notice challenged the constitutionality of the order sought by the Commissioner of Competition under Canadian competition law, including based on the regulated conduct defence (i.e., that the regulated conduct defence should apply because real estate brokers and agents in Ontario are subject to the provisions of the Real Estate and Business Brokers Act).
The regulated conduct defence or “RCD”, which is now partially codified under section 45(7) of the Competition Act, is one of a number of defences and exceptions that, when met, can apply to provide immunity from the application of the Act. In particular, the RCD can apply where conduct that may otherwise be subject to the Competition Act is either mandated or authorized by validly enacted provincial or federal legislation (though does not provide immunity merely because an industry is regulated generally, or there is authorization for conduct that is not subject to challenge under the Act).
For a copy of the Tribunal’s decision see: Commissioner of Competition v. Toronto Real Estate Board.
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Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
