Recently, on August 4, 2012, new Enhanced Labellilng for Food Allergen Regulations under the federal Food and Drugs Act came into force. These Regulations increase the labelling requirements for prepackaged foods sold in Canada containing specific types of priority allergens, gluten sources and added sulphites (see: Canada’s new food allergen labelling regulations came into force).
Health Canada has also issued a Food Allergen Precaution Statement Policy, which recommends that food manufacturers and importers voluntarily make declarations on the labels of prepackaged foods of the possible inadvertent presence of allergens.
Advertising Standards Canada will be holding two upcoming workshops on the basics of Canadian food related advertising regulations in Montreal (September 19th) and Toronto (September 25th). These two hour workshops will address common questions relating to Canadian food advertising related regulations, including how to compare foods, “common names”, how to claim that products are “fresh” / “natural” or “healthy”, nutrient content claims and health claims.
For more information see: The ABC’s of Food Advertising Regulations.
In a recent decision, the Federal Court of Appeal granted a stay of the Competition Tribunal’s May 29, 2012 decision in the contested CCS merger case Commissioner of Competition v. CCS Corporation.
This decision relates to a recent contested BC landfill merger, in which CCS Corporation acquired Complete Environmental Inc. and its wholly-owned subsidiary Babkirk Land Services (the first contested merger case in Canada in six years, an uncommon example of a “prevent” merger case under the Competition Act and a non-notifiable merger challenged by the Competition Bureau).
As a result of the Tribunal’s May decision, following a challenge of the merger by the Bureau, CCS Corporation (now Tervita Corporation) had been subject to a Tribunal order to divest the shares or assets of acquired Babkirk before the end of the year, after which a trustee was to be appointed to effect the sale. The Tribunal had also issued a related Divestiture Procedure Order in July, setting out the terms for the divestiture process (see: Divestiture Procedure Order).
In this regard, the Tribunal partially granted the Commissioner of Competition’s application accepting that the transaction would likely prevent competition substantially in the relevant secure landfill services market in Northern BC, though ordered divestiture rather than dissolution (see: Competition Tribunal Releases Decision in BC Landfill “Prevent” Merger Case and Commissioner of Competition v. CCS Corporation).
The stay of the Tribunal’s decision now granted by the Federal Court will apply until the final determination of the appeal. In granting a stay, the Court applied the test in RJR – MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. (S.C.C.), in which the Supreme Court set out a three-part test (serious issue, irreparable harm and balance of convenience).
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.
____________________
For more information about our regulatory law services: Contact
For more regulatory law updates follow us on Twitter: @CanadaAttorney
On September 11, 2012, the Competition Bureau announced that it had laid charges against Progressive Waste Solutions Ltd. and its subsidiary, BFI Canada Inc. for allegations of breaches of a consent agreement following the merger in 2012 of IESI-BFC Ltd. and Waste Services Inc.
In making the announcement, the Bureau said:
“’Today’s announcement sends a strong signal to businesses that breaching a Consent Agreement with the Competition Bureau is an extremely serious matter and will not be tolerated’, said Melanie Aitken, Commissioner of Competition. ‘Consent Agreements are an essential tool to preserve competition and protect consumers from potential anti-competitive harm. Companies who violate the terms of such agreements must be held to account.’”
This announcement is another indication both of the Bureau’s more aggressive enforcement of the Competition Act generally and signals the Bureau’s ongoing appetite to take steps to ensure that settlement agreements under the Act are complied with. In this regard, this case is the third recently announced case in which the Bureau has commenced enforcement steps, including criminal enforcement, relating to alleged breaches of consent agreements (see also: Bureau Seeks Criminal Penalties in Alleged Misleading Advertising and Breach of Consent Agreement Case and Commissioner of Competition Speech Highlights Enhanced Competition Bureau Enforcement).
This case also appears to indicate that the Bureau is making good on its commitments to both monitor the marketplace generally for conduct that potentially violates the Competition Act and for potential violations of consent agreements negotiated with parties in misleading advertising, merger and other cases.
For example in one recent speech, the Commissioner said that the Bureau will “continue to be vigilant in monitoring consent agreements” and would not “hesitate to take further enforcement action as warranted”. Bureau personnel have also indicated in other recent public remarks that they continue to periodically monitor online advertising and marketing for Competition Act compliance and business media for mergers that, while not notifiable, may raise competition concerns.
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.
____________________
For more information about our regulatory law services: Contact
For more regulatory law updates follow us on Twitter: @CanadaAttorney
Bloomberg has reported that Canada and China have signed the Canada-China Foreign Investment Promotion and Protection Agreement (FIPA) in the midst of the proposed CNOOC/Nexen transaction, in which an application for review for Investment Canada Act approval was filed about a week and half ago.
Following the filing of the application for review by CNOOC, which presumably tracks previously announced commitments by CNOOC to meet the net benefit to Canada criteria under the Investment Canada Act, there have been persistent rumblings both by members of the ruling Conservatives and media that any approval of the proposed CNOOC deal would need to include some assurances for reciprocal Canada/China investment – i.e,, not merely “one-way” investment as has been alleged by some in relation to investment by the Chinese in Africa and other regions.
Chinese President Hu Jintao and Canadian Prime Minister Stephen Harper signed the new FIPA agreement yesterday at the Asia-Pacific Economic Cooperation Summit in Russia, which is intended to provide stronger protection for Canadians investing in China (including presumably Scotiabank’s recent efforts to expand its business into China) and is also meant to protect investors against discriminatory and arbitrary practices, while creating a process to settle disputes with either Canada or China.
In announcing the new agreement, the PM said:
“Our Government is committed to creating the right conditions for Canadian businesses to compete globally … this agreement with China – the world’s second largest economy – will provide stronger protection for Canadians investing in China, and create jobs and economic growth in Canada.”
With the considerable focus on Chinese investment in Canada at the moment, largely arising from the proposed CNOOC acquisition of Nexen (as well as several proposed SOE investments in Canada), Josephine Smart at the University of Calgary has published a new paper on Canada/China investment relations entitled “Dancing With the Dragon: Canadian Investment in China and Chinese Investment in Canada”.
Abstract:
“While Canadian trade and investment with China is today relatively modest, with China well on track to displace the United States as the world’s largest economy, Canada must make it a priority to prepare for a future characterized by dramatically increased trade and investment between our two countries. This paper sheds light on some the issues and measures Canadian governments will have to consider as they look to establish safe and prosperous relationships with China. To begin with, Canadians choosing to invest in China must be prepared for the risk inherent in that country’s peculiar ‘capitalism with socialist characteristics.’ The Chinese state continues to play an interventionist role in many significant sectors in the economy, and the strategy behind China’s overseas investment in countries such as Canada is specifically aimed at furthering China’s own national security goals and geopolitical influence. Canadians wishing to do business in China will also require great cultural competency. The cultural institution known as guanxi — in which gifts to sway influence are considered an acceptable, even desirable practice — persists in China, with even native Chinese unclear on where to draw the line between ‘good’ guanxi and ‘bad’ corruption.
At home, Canadians may soon be forced to confront questions about how much of our own land security and natural resource security we are willing to compromise by permitting Chinese investment to gather up our farmland and key industries. Canadians should decide sooner, not later, how well our own strategic interests are served by permitting unrestricted Chinese investment in our economy. In anticipation of these issues, Canada’s federal and provincial governments should provide increased support for a more comprehensive training and research infrastructure that better prepares Canadians for the growing bilateral trade between our countries. They should also reinvest in the monitoring and regulatory enforcement for food and product safety to ensure that Canadians remain protected from unsafe Chinese imports.”
For a copy of the paper see: Dancing With the Dragon
____________________
For more information about our regulatory law services: Contact
For more regulatory law updates follow us on Twitter: @CanadaAttorney
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
