A. Overview

SECTION A OVERVIEW

 

This database posted March 2024

Sector updates  and cases

Ontario iGaming: New Amendments

Bennett Jones March 19, 2024

Class Actions And The Rise Of The Machine

Webinar recording Tyr LLP April 15, 2024

Supreme Court and IP Addresses' privacy

Burnet Duckworth & Palmer April 17, 2024

 

NEWS/ ISSUES

 

CSA Updated Guidance ESG Investment Fund Disclosure

McCarthy Tetrault/ Lex April 25, 2024

U.S. SEC Climate Disclosure Rules and the Impact on Canadian Businesses
Beveridge & Diamond PC Lex April  5, 2024

Influencer Marketing: Legal Implications for Canadian Content Creators and Advertisers
Aird & Berlis LLP | Aird & McBurney/ Lex March 27, 2024

CSSB Releases Draft Standards: One Step Closer to Mandatory Sustainability Reporting in Canada
Fasken March 20, 2024

Privacy of IP Addresses: Understanding the Supreme Court Ruling in R. v. Bykovets
McCarthy Tétrault/ Lex March 6, 2024

 

IN SUM

 

Canada's regulatory regime is pretty familiar in the sense that it has a strong authority in Ad Standards (EN; FR), whose July 2019 Code of Advertising Standards and Interpretation guidelines form the key self-regulatory influence with a backdrop of federal consumer protection legislation in the Competition Act, together with provincial equivalents (which we address later), not unlike the US framework. There's 'good citizen' behaviour from some industries, such as the Beer Industry's Responsible Advertising and Marketing Code (March 2020) and Spirits Canada's Code of Responsible Advertising and Marketing (2018) FR, albeit alcohol advertising is also subject to legislation. Ad Standards offer pre-clearance in a number of the more sensitive categories and it's mandatory for food ads primarily directed to children. Check Mark feature here and Complaint case summaries are here.

 

 

So it's a recognisable landscape but with some important wrinkles, if landscapes have wrinkles, such as some particular arrangements for French-speaking Quebec (see below) and, unusually, some relatively broad environmental rules, in the sense that there's no environmental code per se (though there are self-regulatory guidelines - see No. 3 in the link - and upcoming developments from the statutory authority described here by Blakes and a sensitive attitude from the authorities to what is as much a high profile issue in Canada as it is elsewhere. Perhaps predictably in the Canadian cultural environment, that sensitivity extends into matters of representation and diversity. The Association of Canadian Advertisers publish a Diversity and Representation Guide (2021).

 

 

This October 2023 Advertising & Product Regulatory from Gowling LLG is an extremely helpful overview and includes e.g. a section (9) on Quebec where there are particularly tight rules on food advertising to kids especially. Likewise, Prohibited and Controlled Advertising in Canada from Miller Thomson/ Lex of March 2020 sets out some significant restrictions in the jurisdiction. The same company forms the content of Chambers and Partners' Advertising & Marketing 2023 Canada, last updated October 2023 and their checklist may also be helpfulAlso worthy of note in this necessarily brief summary is the Competition Bureau's Advertising do's and don'ts and Deceptive Marketing Practices. The Competition Bureau is 'an independent law enforcement agency that protects and promotes competition ... We enforce the Competition Act, Consumer Packaging and Labelling Act .... and will not hesitate to take action when business is not carried out in ways that are truthful, fair and legal. We work to protect and promote competition by...ensuring truth in advertising...'

 

INFLUENCER MARKETING 

 

There are at least two heavyweight influences in what is a high profile issue among Canada's marketing weaponry. The first from Ad Standards' Influencer Marketing Disclosure Guidelines (Update Fall 2023), which points to broader but relevant clauses in its general code linked above - clauses related to accuracy and clarity (1), disguised advertising techniques (2) and testimonials (7) - and sets out more specific requirements  from both advertisers and influencers in conveying where there is a 'material connection' (the same expression used in the Competition Bureau's provisions linked below, so the two authorities are on the same page). Extracting from Ad Standards' Disclosure guidelines: 'Hashtags that have been recognized as clear and widely accepted include: #ad, #sponsored, #XYZ_Ambassador, #XYZ_Partner (where “XYZ” is the brand name).

 

As we have indicated, the above guidelines include a link to Volume 4 of the Competition Bureau's Deceptive Marketing Practices Volume 4 Influencer Marketing. This is also an extensive work which sets out the legal framework, provides checklists for both advertisers and influencers and points to the guidelines above, as well as The International Consumer Protection Network (ICPN) Online Reviews and Endorsement Guidelines. For a helpful summary of the two sets of rules and some additional requirements by sector and medium (e.g. YouTube), read New guidelines for influencer marketing #FullDisclosure from Smart & Biggar/ Lex November 30, 2023. Influencer marketing: How to keep your practices compliant from Miller Thomson/ Lex February 12, 2024 is more focused on the advertiser's compliance in light of updated guidelines. Finally, Influencer Marketing Research 2023 from Ad Standards is solid consumer research on the consumer perspective. The image below is an extract from the Competition Bureau's Vol 4.

 

 

CHILDREN AND FOOD AND DRINK PRODUCTS TO CHILDREN

 

Section 12 of the Code of Advertising Standards addresses advertising to children (defined under the CCFBA below as under 13 but in the Broadcast code, also below, as under 12): 'Advertising that is directed to children must not exploit their credulity, lack of experience or their sense of loyalty, and must not present information or illustrations that might result in their physical, emotional or moral harm.' Child-directed advertising in the broadcast media is separately regulated by the Broadcast Code for Advertising to Children, also administered by Ad Standards. Advertising to children in Quebec is prohibited by the Quebec Consumer Protection Act (emphasis ours).

 

Canada's system starts with pre-clearance of food commercials under the provisions of the Food and Drugs Act and the Canadian Food Inspection Agency's Food Labelling for Industry (CFIA Industry Labelling Tool). "The Code for the Responsible Advertising of Food and Beverage Products to Children (CCFBA; May 2023) sets rules for advertisers of food and beverage products, requiring a responsible approach to child audiences. The CCFBA starts with a prohibition: unless the food or beverage product in question meets specific nutrition criteria, the advertising may not be primarily directed to children. A companion document - the Guide for the Responsible Advertising of Food and Beverage Products to Children - helps advertisers understand its intended scope and application, and informs Ad Standards in its interpretation of the CCFBA. Advertising for a food or beverage product may not be primarily directed to persons under thirteen years of age (the “child” or “children”) unless the product satisfies the child advertising nutrition criteria set forth in Appendix A (the “Restriction”)." Scope is extracted here; a child is defined as under 13; the code also prohibits advertising in elementary or middle schools. Ads that might reasonably be seen as primarily directed to children must be pre-cleared by Ad Standards.

 

Food advertising is also regulated under the The Food and Drug Act (EN; FDA) and the Safe Food for Canadians Act (SFCA); both measures provide broad rules, e.g. under Part I (3) of the FDA the prohibition of advertising 'any food, drug, cosmetic or device to the general public as a treatment, preventative or cure for any of the diseases, disorders or abnormal physical states referred to in Schedule A.1.' The SFCA provides inter alia 6 (1) 'It is prohibited for a person to manufacture, prepare, package, label, sell, import or advertise a food commodity in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, quality, value, quantity, composition, merit, safety or origin or the method of its manufacture or preparation.' Bill C-252 An Act to amend the Food and Drugs Act (prohibition of food and beverage marketing directed at children) prohibits the advertising of 'prescribed foods that contain more than the prescribed level of sugars, saturated fat or sodium in a manner that is primarily directed at persons who are under 13 years of age.' Current (March 2024) status is second reading in the Senate.

 

Some lawyer commentary

 

Canada: Back to school essentials: Do’s and don’ts of advertising food to children in Canada

Baker McKenzie September 28, 2023

 

Blake's Bulletin on the CCFBA July 18, 2023, from which: 

in 2016, the federal Minister of Health launched the Healthy Eating Strategy, a key component of which was to restrict food and beverage advertising to children. The same year, the Minister introduced Bill S-228, an Act to amend the Food and Drugs Act, which aimed to prohibit food and beverage marketing directed at children in the belief that these advertisements contribute to child obesity in Canada. Bill S-228 faced significant pushback on the basis that there was no evidence that exposure to specific types of food advertising contributes to obesity in children, and ultimately failed to be adopted in 2019 prior to the 2019 Canadian federal election. See above act amending the FDA.

 

Proposed policy on food advertisements directed to children in Canada
Miller Thomson/ Lex June 9, 2023

Includes Policy update on restricting food advertising primarily directed at children: Overview from Health Canada June 2023.

 

ENVIRONMENTAL CLAIMS

 

The picture on regulation of environmental claims is a little blurred at the time of writing (March 2024). The twin spokes of regulation - self-regulatory and statutory - are in the first instance not fully developed (only in the sense that there are no specific environmental claims rules per se - but solid 'general' rules that protect consumers from misleading claims of any kind) and in the second, rules are in evolution, more of which later in this section. So Ad Standards' Interpretation Guidelines #3 December 2021 states: 'When evaluating complaints involving environmental claims that allegedly are misleading or deceptive, Standards Council may, in exercising its judgment, take into account the guidance of the Competition Bureau (available here) and, where relevant, the ICC Framework for Responsible Environmental Marketing Communications (November 2021).

 

Historically, Standards Council has also referred to the Canadian Standards Association Special Publication PLUS 14021 (GRS note: the publication appears to be available only when accessed from within Canada) Environmental claims: A guide for industry and advertisers. This may continue to be a reference for Standards Council in the case of advertising in market prior to this update to Interpretation Guideline #3.

 

The Competition Bureau and upcoming legislation 

 

Is the greenwashing amendment a step forward?

Lavery lawyers May 7, 2024

 

As of December 2021, the Competition Bureau's position on Environmental claims and greenwashing is the linked paper. Per commentary below, this references the archived Environmental claims: A guide for industry and advertisers. 'The Guide may not reflect the Bureau’s current policies or practices and does not reflect the latest standards and evolving environmental concerns. The guide will remain available for reference, research and recordkeeping purposes, but it will not be altered or updated as of the date of archiving.' 

 

Bill C-59 (link is to the charter statement Feb 1, 2024; the bill is here): An Act to implement certain provisions of the fall economic statement tabled in Parliament on November 21, 2023 and certain provisions of the budget tabled in Parliament on March 28, 2023. The bill had its first reading November 30, 2023. See Blake's Bulletin of the same date. Division 6 of Part 5 – Measures Related to Competition would include several amendments to the Competition Act, one of which is 'Representations of a product’s benefits for the environment': ...The amendments would add, to the existing section dealing with representations to the public, a new form of reviewable conduct: a statement, warranty or guarantee of a product’s benefits for protecting the environment or mitigating the environmental and ecological effect of climate change that is not based on an adequate and proper test.'

 

 The proposed amendment would seek to protect consumers, competitors, and the proper functioning of the market, against the harms of untested representations about a product’s benefits for protecting the environment or mitigating the effects of climate change. Requiring persons to adequately test their environmental claims improves the functioning of the market by improving the reliability of information provided to consumers and preventing persons from relying on untested claims to gain a market advantage. The amendment would not impose a requirement that testing prove the representation with absolute certainty. Instead, it requires “adequate and proper” testing of the claim. Furthermore, the amendment would not establish a criminal offence: if a person is found to have engaged in reviewable conduct for the purpose of this amendment, only civil or administrative proceedings would be available.

 

Commentary

 

Increased scrutiny on greenwashing in Canada ushers in changing regulations
DLA Piper April 18, 2024

Marketing's dirty laundry ̶ greenwashing, climate washing and the growing legal risks of environmental marketing
Baker McKenzie/ Lex June 7, 2023. From which, a bit of contextual history: 

 

'Historically, advertisers relied on the detailed enforcement guidelines (Environmental claims: A guide for industry and advertisers) published by the Competition Bureau of Canada ("Bureau"), originally developed together with the Canadian Standards Association, which provided extensive guidance on the use of individual environmental claims. However, concurrently with a major greenwashing enforcement action, those enforcement guidelines were formally archived in 2021. The Bureau has made clear that these guidelines no longer reflect its current enforcement position due to changes in standards and evolving environmental concerns. Since then, the Bureau has only made statements that give high-level guidance, such as, companies should ensure that the precise environmental benefits of a product are described.'

 

Green branding or greenwashing? Regulatory considerations
Smart & Biggar April 28, 2023. Covers all the bases.

 

COMPARATIVE ADVERTISING 

 

From the Code of Advertising Standards 6. Comparative Advertising: Advertisements must not, unfairly, discredit, disparage or attack one or more products, services, advertisements, companies or entities, or exaggerate the nature or importance of competitive differences. and 9. Imitation: No advertiser shall imitate the copy, slogans or illustrations of another advertiser in such a manner as to mislead the consumer.

 

Ad Standards' library provides Guidelines for the Use of Comparative Advertising, albeit published 2012 

 

New Guidance from the Federal Court regarding Comparative Advertising Claims in Canada from Bereskin & Parr LLP August 4, 2023 reports on the Energizer v Gillette case of July 2023, which is an important case but not necessarily dealing directly with comparative advertising per se as it concerned a) trademark infringement reviewed under the Trademarks Act section 22 No person shall use a trademark registered by another person in a manner that is likely to have the effect of depreciating the value of the goodwill attaching thereto and b) the use of sticker labels on Duracell batteries. The judge also referred to the Competition Act section 52 when assessing whether a claim was 'false or misleading'. This provides - at least - interesting reading on how the courts interpret those provisions; see under the linked 'New Guidance' commentary the para headed 'false and misleading claims.' Section 7 of the Trademarks Act provides (in part): 'No person shall (a) make a false or misleading statement tending to discredit the business, goods or services of a competitor; (b) direct public attention to his goods, services or business in such a way as to cause or be likely to cause confusion in Canada, at the time he commenced so to direct attention to them, between his goods, services or business and the goods, services or business of another;'

 

AD CONTENT LEGISLATION 

 

The Competition Act is the principal statute that covers marketing and advertising practices, as well of course as a great deal else, and equivalent to the UCPD in the EU or the FTC Act in the U.S. False or misleading representations are criminalised under 52 (1) 'No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect.' Additionally, section 74.01 addresses a civil, reviewable offense of a slightly different form of misrepresentation, one related to a 'performance claim' a statement, warranty or guarantee of the performance, efficacy or length of life of a product that is not based on an adequate and proper test thereof versus section 52's 'materially misleading' claim. It's as well also to be aware of The Trademarks Act, discussed above under the Comparative Advertising header.

 

Some commentary

Canadian Advertising Law: 2023 Year in Review.

Blake, Cassels & Graydon/ Lex Jan 10, 2024. Addesses Bill c-59 above

2023 Year in Review: Advertising, Marketing and Regulatory Law

Bereskin & Parr LLP February 21, 2024

Canada's new Online Harms Act: what you need to know

Osler Hoskin & Harcourt LLP March 1, 2024

Competition Law and the Environment: Update
McCarthy Tétrault LLP Feb 14, 2024

 

The Food and Drug Act 'An Act respecting food, drugs, cosmetics and therapeutic devices.'

PART I General Prohibited advertising. 3 (1) 'No person shall advertise any food, drug, cosmetic or device to the general public as a treatment, preventative or cure for any of the diseases, disorders or abnormal physical states referred to in Schedule A.1. Prohibited claims - animal testing 16.3 (1) No person shall make a claim on the label of or in an advertisement for a cosmetic that is likely to create an impression that the cosmetic was not tested on animals after the day on which this section comes into force unless the person has evidence that no such testing occurred after that day.'

 

There's a system of marketing authorisations for some food types. 

 

Provincial legislation in Canada

 

Advertisers and agencies will generally look to the Federal Competition Act and the Code of Advertising Standards for advertising rules, but it's as well at least to be aware of provincial legislation as, similar to the US framework, local rules can be the first port of call if a suit is filed. Most if not all of the provinces administer their own consumer protection legislation and, for example, Ontario introduced in October the new Consumer Protection Act 2023; see Gowling WLG December 2023 commentary hereWe don't set out provisions, however, as the Competition Act is broad and there's a strong self-regulatory authority and a less litigious environment versus the US. Additionally, much of the legislation is devoted to e.g. contract law and pricing regulation - important marketing issues but not directly ad related. State authorities, such as the Alcohol and Gaming Commission of Ontario, publish comprehensive Liquor Advertising Guidelines.

 

Legislative assemblies of Canadian provinces and territories

Provincial Statutes & Legislation

 

CHANNEL (I.E. PLACEMENT) RULES 

 

Personal Information Protection and Electronic Documents Act (PIPEDA - S.C. 2000, c. 5)

Current federal privacy law; see below for developments. Taylor Wessing commentary here  

Canada's Anti-Spam Law (S.C. 2010, c. 23) about which:

Cookie Consent in Canada Cassie November 2022 and 

Website cookies in Canada: is consent required? DLA Piper April 2020
Supreme Court rules reasonable expectation of privacy in IP address
Dentons/Lex March 20, 2024

 

Proposed changes to federal privacy legislation

On 16 June 2022, the Canadian government introduced Bill C-27, which aims to introduce three new pieces of legislation: (i) the Consumer Privacy Protection Act (CPPA), (ii) the Personal Information and Data Protection Tribunal Act, and (iii) the Artificial Intelligence and Data Act (AIDA). The CPPA would introduce more severe penalties for non-compliance, enhance the Privacy Commissioner’s authority to oversee compliance, and create a right to request deletion of personal information. AIDA would create a framework for regulating the design, development, and use of certain artificial intelligence systems (taken from Chambers 2023 Canada) and New rules for a new era from Gowling WLG here. The bill at the time of writing (March 2024) is still in committee; see schedule here.

 

TV and radio

 

Canadian Radio-television and Telecommunications Commission (CRTC), from which:

 

  • The CRTC doesn’t directly regulate advertising content, except advertising to children and alcohol ads;
  • Children: broadcasters must adhere to the Broadcast Code for Advertising to Children published by the Canadian Association of Broadcasters in cooperation with Advertising Standards Canada;
  • In Quebec, commercial advertising aimed at persons younger than 13 is generally prohibited. See the Office de la protection du consommateur;
  • Alcohol: Broadcasters can advertise alcoholic beverages, but must follow the 'New regulatory framework governing the broadcast of alcoholic beverages advertising' (Public Notice CRTC 1996-108) GRS note: the preceding linked paper is archived on the web. The CRTC also expects broadcasters that carry advertising for alcoholic beverages to report annually on how many alcohol-education messages they broadcast;

  • Drugs, medications and condoms: Health Canada has standards for advertising these products;

  • Ad clearance: advertising clearance is the process of previewing commercials to make sure they meet applicable standards. Advertising Standards Canada provides the service, but clearance is only mandatory for children’s advertising;

  • False and misleading ads: Broadcasters must meet the Canadian Association of Broadcasters’ Code of Ethics on advertising. If you think an ad is false or misleading, contact Advertising Standards Canada or the Competition Bureau at Industry Canada.

 

 

QUEBEC
https://en.wikipedia.org/wiki/Quebec

 

  • French Language Requirements: Public Signs, Posters And Commercial Advertising Smart & Biggar September 2020;
  • Quebec’s Consumer Protection Act 'contains many provisions unique to that province, including total price advertising, restrictions on free trials, rules for advertising of premiums and other material conditions.' (from Miller Thomson's Prohibited and Controlled Advertising in Canada);
  • Title II Business Practices of the above linked Consumer Protection Act provides the restrictions indicated above with the core 'misrepresentation' clause being 219. 'No merchant, manufacturer or advertiser may, by any means whatever, make false or misleading representations to a consumer.'
  • Clause 248 provides: 'Subject to what is provided in the regulations, no person may make use of commercial advertising directed at persons under thirteen years of age.'
  • Alcoholic beverage advertising is subject to pre-clearance in the province of Quebec by the provincial liquor, racing and gaming authority, who administer the Regulation on promotion, advertising and educational programs;
  • Quebec's Law 25 on data processing and privacy 'was adopted in September 2021 and came into effect in phases, with some key provisions fully implemented as of September 2023.' (Secure Privacy March 6, 2024). Cassie checklist here.

 

 

 

 

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Read more

B. Content Rules

SECTION B CONTENT RULES

 

 

1. SELF-REGULATION 

 

The Code of Advertising Standards (July 2019) 

Interpretation guidelines 

Influencer Marketing Disclosure Guidelines (Fall 2023)

The Food and Beverage Advertising Code (May 2023)

 

2. LEGISLATION 

 

The Competition Act

The FDA and SFCA 

Provincial legislation  

 

 

 

1. Accuracy and Clarity

In assessing the truthfulness and accuracy of a message, advertising claim or representation under Clause 1 of the Code the concern is not with the intent of the sender or precise legality of the presentation. Rather the focus is on the message, claim or representation as received or perceived, i.e. the general impression conveyed by the advertisement.

 

(a) Advertisements must not contain, or directly or by implication make, inaccurate, deceptive or otherwise misleading claims, statements, illustrations or representations.

(b) Advertisements must not omit relevant information if the omission results in an advertisement that is deceptive or misleading.

(c) All pertinent details of an advertisement must be clearly and understandably stated.

(d) Disclaimers and asterisked or footnoted information must not contradict more prominent aspects of the message and should be located and presented in such a manner as to be clearly legible and/or audible.

(e) All advertising claims and representations must be supported by competent and reliable evidence, which the advertiser will disclose to Ad Standards upon its request. If the support on which an advertised claim or representation depends is test or survey data, such data must be reasonably competent and reliable, reflecting accepted principles of research design and execution that characterize the current state of the art. At the same time, however, such research should be economically and technically feasible, with regard to the various costs of doing business.

(f) The advertiser must be clearly identified in the advertisement, excepting the advertiser of a “teaser advertisement” as that term is defined in the Code.

 

2. Disguised Advertising Techniques

No advertisement shall be presented in a format or style that conceals the fact that it is an advertisement.

 

3. Price Claims

(a) No advertisement shall include deceptive price claims or discounts, unrealistic price comparisons or exaggerated claims as to worth or value. "Regular Price", "Suggested Retail Price", "Manufacturer’s List Price" and "Fair Market Value" are deceptive terms when used by an advertiser to indicate a savings, unless they represent prices at which, in the market place where the advertisement appears, the advertiser actually sold a substantial volume of the advertised product or service within a reasonable period of time (such as six months) immediately before or after making the representation in the advertisement; or offered the product or service for sale in good faith for a substantial period of time (such as six months) immediately before or after making the representation in the advertisement.

(b) Where price discounts are offered, qualifying statements such as "up to", "XX off", etc., must be in easily readable type, in close proximity to the prices quoted and, where practical, legitimate regular prices must be included.

(c) Prices quoted in advertisements in Canadian media, other than in Canadian funds, must be so identified.

 

4. Bait and Switch

Advertisements must not misrepresent the consumer’s opportunity to purchase the goods and services at the terms presented. If supply of the sale item is limited, or the seller can fulfill only limited demand, this must be clearly stated in the advertisement.

 

5. Guarantees

No advertisement shall offer a guarantee or warranty, unless the guarantee or warranty is fully explained as to conditions and limits and the name of the guarantor or warrantor is provided, or it is indicated where such information may be obtained.

 

6. Comparative Advertising

Advertisements must not, unfairly, discredit, disparage or attack one or more products, services, advertisements, companies or entities, or exaggerate the nature or importance of competitive differences.

 

7. Testimonials

Testimonials, endorsements or other representations of opinion or preference, must reflect the genuine, reasonably current opinion of the individual(s), group or organization making such representations, and must be based upon adequate information about or experience with the identified product or service and must not otherwise be deceptive.

 

8. Professional or Scientific Claims

Advertisements must not distort the true meaning of statements made by professionals or scientific authorities. Advertising claims must not imply that they have a scientific basis that they do not truly possess. Any scientific, professional or authoritative claims or statements must be applicable to the Canadian context, unless otherwise clearly stated.

 

9. Imitation

No advertiser shall imitate the copy, slogans or illustrations of another advertiser in such a manner as to mislead the consumer.

 

10. Safety

Advertisements must not without reason, justifiable on educational or social grounds, display a disregard for safety by depicting situations that might reasonably be interpreted as encouraging unsafe or dangerous practices, or acts.

 

11. Superstitions and Fears

Advertisements must not exploit superstitions or play upon fears to mislead the consumer.

 

12. Advertising to Children

Advertising that is directed to children must not exploit their credulity, lack of experience or their sense of loyalty, and must not present information or illustrations that might result in their physical, emotional or moral harm. Child-directed advertising in the broadcast media is separately regulated by the Broadcast Code for Advertising to Children, also administered by Ad Standards. Advertising to children in Quebec is prohibited by the Quebec Consumer Protection Act.

 

13. Advertising to Minors

Products prohibited from sale to minors must not be advertised in such a way as to appeal particularly to persons under legal age, and people featured in advertisements for such products must be, and clearly seen to be, adults under the law.

 

14. Unacceptable Depictions and Portrayals

It is recognized that advertisements may be distasteful without necessarily conflicting with the provisions of this Clause 14; and the fact that a particular product or service may be offensive to some people is not sufficient grounds for objecting to an advertisement for that product or service.

 

Advertisements shall not:

(a) condone any form of personal discrimination, including discrimination based upon race, national or ethnic origin, religion, gender identity, sex or sexual orientation, age or disability;     

(b) appear in a realistic manner to exploit, condone or incite violence; nor appear to condone, or directly encourage, bullying; nor directly encourage, or exhibit obvious indifference to, unlawful behaviour;

(c) demean, denigrate or disparage one or more identifiable persons, group of persons, firms, organizations, industrial or commercial activities, professions, entities, products or services, or attempt to bring it or them into public contempt or ridicule;

(d) undermine human dignity; or display obvious indifference to, or encourage, gratuitously and without merit, conduct or attitudes that offend the standards of public decency prevailing among a significant segment of the population.

 

 

1. Elements of Humour and Fantasy

2. Advertising to Children

3. Environmental claims 

4. Alleged Infractions of Clauses 10 or 14: Motor Vehicle Advertising

5. Testimonials, Endorsements, Reviews

6. Scope of “government advertising”, “political advertising” and “election advertising”

7. Gender Portrayal Guidelines (ARCHIVED) Extract Since the themes identified in the document may still help advertisers to identify potential issues applicable to gender portrayal in advertising, the Gender Portrayal Guidelines are archived and not withdrawn at this time

 

 

'This guide is the property of Ad Standards and may not be reproduced, in whole, or in part, without prior permission from Ad Standards.'

These are significant, recent and comprehensive guidelines so it's recommended that you click on the link above .

 

 

The code is principally designed to frame requirements for advertising food and beverages to children: Advertising for a food or beverage product may not be primarily directed
to persons under thirteen years of age (the “child” or “children”) unless the product satisfies the child advertising nutrition criteria set forth in
Appendix A (the “Restriction”).  We don't reproduce the appendix here as it's relatively complex and covers a number of different food types. Other restrictions (spelt out in full in the code) are:

 

1. No Advertising in Schools

2. No Product Placement/Restricted Product Integration

3. No Urging Children to Buy 

 

'It is Ad Standards’ expectation that all advertising for food and beverages that could reasonably be considered to be primarily directed at children will be submitted for pre-clearance.'

 

LEGISLATION

 

The Competition Act

https://laws-lois.justice.gc.ca/eng/acts/c-34/FullText.html

 False or misleading representations under 52 (1) 'No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect.' It's as well also to be aware of The Trademarks Act, which will be referenced and interpreted in comparative advertising cases. 

 

Bill C-59 had its first reading November 30, 2023. See Blake's Bulletin of the same date. Division 6 of Part 5 – Measures Related to Competition would include several amendments to the Competition Act, one of which is 'Representations of a product’s benefits for the environment': ...The amendments would add, to the existing section dealing with representations to the public, a new form of reviewable conduct: a statement, warranty or guarantee of a product’s benefits for protecting the environment or mitigating the environmental and ecological effect of climate change that is not based on an adequate and proper test.'

 

The Food and Drugs Act

'An Act respecting food, drugs, cosmetics and therapeutic devices'

https://laws-lois.justice.gc.ca/eng/acts/f-27/FullText.html

 

Amendment to the above 

 Bill C-252 An Act to amend the Food and Drugs Act (prohibition of food and beverage marketing directed at children) prohibits the advertising of 'prescribed foods that contain more than the prescribed level of sugars, saturated fat or sodium in a manner that is primarily directed at persons who are under 13 years of age.' Current status is second reading in the Senate 

 

 The Safe Food for Canadians Act (SFCA); both measures (the FDA and SFCA) provide broad rules, e.g. under Part I (3) of the FDA the prohibition of advertising 'any food, drug, cosmetic or device to the general public as a treatment, preventative or cure for any of the diseases, disorders or abnormal physical states referred to in Schedule A.1.' The SFCA provides inter alia 6 (1) 'It is prohibited for a person to manufacture, prepare, package, label, sell, import or advertise a food commodity in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, quality, value, quantity, composition, merit, safety or origin or the method of its manufacture or preparation.'

 

Provincial legislation 

Most if not all of the provinces administer their own consumer protection legislation and, for example, Ontario introduced in October the new Consumer Protection Act 2023; see Gowling WLG December 2023 commentary hereWe don't set out provisions, however, as the Competition Act is broad and there's a strong self-regulatory authority and a less litigious environment versus the US. Additionally, much of the legislation is devoted to e.g. contract law and pricing regulation - important marketing issues but not directly ad related. State authorities, such as the Alcohol and Gaming Commission of Ontario, publish comprehensive Liquor Advertising Guidelines.

 

Legislative assemblies of Canadian provinces and territories

Provincial Statutes & Legislation

 

 

 

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C. Channel Rules

1. TV/Radio/VOD

SECTION C: TV & RADIO/ AV

 

 

CONTEXT AND KEY RULES 

 

  • The self-regulatory and statutory rules set out under our earlier content section B apply, except those that are specific to non-broadcast (e.g. some online rules). In addition, some provincial legislation, especially in sectors such as alcohol, should also be observed;   
  • The Canadian Radio-television and Telecommunications Commission (CRTC) is the relevant authority; this is what they do. 'The CRTC doesn’t directly regulate advertising content, except advertising to children and alcohol ads.'
  • CRTC publish Commercials on TV and Radio; from that, here is the page on their advertising content rules
  • Child-directed advertising in the broadcast media is separately regulated by the Broadcast Code for Advertising to Children, also administered by Ad Standards. CRTC state that clearance is mandatory for children's advertising;
  • Broadcasters can advertise alcoholic beverages, but must follow the 'regulatory framework governing the broadcast of alcoholic beverages advertising (Public Notice CRTC 1996-108,' which can be found here, albeit archived on the web); See also Ad Standards Canada's Alcoholic Beverage Clearance Guide (2020); 
  • Sponsorships and contra advertising are permitted; ditto (as far as we can establish) product placement, and will be subject to rules restricting e.g. alcohol, children (especially food and beverages to children);
  • Advertising to children in Quebec is prohibited by the Quebec Consumer Protection Act

 

 

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2. Cinema/Press/Outdoor

SECTION C: CINEMA, PRINT, OUTDOOR

 

  • The self-regulatory and statutory rules set out under our earlier content section B apply in these media. In addition, some provincial legislation, especially in sectors such as alcohol, should also be observed;  
  • We were unable to trace any rules specific to cinema (Cineplex blocked our website access request on security grounds), though we expect that the traditional age-related rules will apply for e.g. alcohol advertising, which is also subject to statutory provincial requirements for example from the Ontario Alcohol and Gaming Commission, section 4: advertisements may not appear in magazines targeted specifically at people under the legal drinking age (LDA is 18 in Alberta, Manitoba and Quebec, and 19 in the rest of the Canadian provinces and territories) or run in conjunction with movies where the intended age of the audience is under the legal drinking age; 
  • The Code for the Responsible Advertising of Food and Beverage Products to Children (CCFBA; May 2023) will also apply in cinema; the code applies 'in any media'; as a reminder: Advertising for a food or beverage product may not be primarily directed to persons under thirteen years of age (the “child” or “children”) unless the product satisfies the child advertising nutrition criteria in Appendix A 
  • The same section also prohibits the placing of stationary outdoor advertising within 200 metres of a primary or secondary school;
  • In the context of any 'native' advertising in print, Ad Standards Canada includes a number of identification rules, the most significant of which is clause 2: 'Disguised Advertising Techniques: no advertisement shall be presented in a format or style that conceals the fact that it is an advertisement.' The Competition Act also prohibits misleading representations 

 

 

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3. Online Commercial Communications

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

This section covers the digital media space in broad. More specific headers such as email, marketer's own websites, cookies and OBA etc. follow 

 

.................................

 

  • The self-regulatory and statutory rules set out under our earlier content section B apply in these media (online commercial communications are in remit), except those rules that specify broadcast media. In addition, some provincial legislation, especially in sectors such as alcohol, should also be observed;  
  • The Competition Act includes under Section 52.01 False or misleading representation - sender or subject matter information (1) 'No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent a false or misleading representation in the sender information or subject matter information of an electronic message. (2) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent in an electronic message a representation that is false or misleading in a material respect.'

  • The issues in online commercial communications are largely dependent on the specifics of the medium: regular contextual online display advertising is subject only to the rules referenced above (except in the case of sector-specifc rules such as those for cars, cosmetics - the rules in these pages are 'general' i.e. all-sector rules), whereas more targeted channels will involve user consent and sender information requirements. Most online platforms also have their own advertising rules, generally in line with authorities' - Meta's are here;
  • As so much influencer marketing activity is online, bear in mind that this is a sensitive issue in most jurisdictions and Canada is no exception. Ad Standards' Influencer Marketing Disclosure Guidelines (Update Fall 2023) is the key regulation, together with the Competition Bureau's Deceptive Marketing Practices Volume 4 Influencer Marketing.

 

KEY APPLICABLE PRIVACY LEGISLATION 
Privacy issues should be reviewed with specialist advisors 

 

  • Canada's Anti-Spam Law (CASL S.C. 2010, c. 23Purpose to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities, because that conduct (a) impairs the availability, reliability, efficiency and optimal use of electronic means to carry out commercial activities; (b) imposes additional costs on businesses and consumers; (c) compromises privacy and the security of confidential information; and (d) undermines the confidence of Canadians in the use of electronic means of communication to carry out their commercial activities in Canada and abroadSee Section 6 Requirements and Prohibitions on unsolicited electronic messages; 
  • The Personal Information Protection and Electronic Documents Act (PIPEDA) 'sets out the ground rules for how businesses subject to the law must handle personal information in the course of commercial activities.' The act declares its purpose as to establish .. rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances. Schedule I sets out the ten principles Accountability, Identifying purposes, Consent, Limiting collection, Use, disclosure and retention, Accuracy, Safeguards, Openness, Individual access and Challenging compliance that form the core of the legislation in this context.
  • Two sets of regulations accompany the Anti-Spam Law: the Electronic Commerce Protection Regulations (SOR/2013-221), which addresses inter alia some definitions, excluded commercial messages and conditions for use of consent and the Electronic Commerce Protection Regulations (CRTC) (SOR/2012-36) which covers 'Information to be included in commercial electronic messages'
  • Note that Quebec's Law 25 formerly Bill 64 The Privacy Legislation Modernization Act differs in some respects from the federal equivalent privacy rules; see Everything You Need To Know About Quebec's Law 25 from Secure Privacy March 2024 and What Is Quebec’s Law 25? from Osano, which explains some of the key distinctions of this relatively new (the final phase came into effect September 2023) and representing 'the latest and most significant privacy legislation development in Canada.' (Gowling WLG)

Guidance and commentary

 

  • See Office of the Privacy Commission of Canada (OPC), 'which oversees compliance with PIPEDA, which includes investigating privacy complaints, and helping businesses improve their personal information handling practices.'
  • The Canadian Code of Practice for Consumer Protection in Electronic Commerce is pretty old (it was endorsed by federal, provincial and territorial ministers responsible for consumer affairs on January 16, 2004) but as far as we can establish still extant. The code establishes 8 principles including e.g. 4. Online privacy 7. Unsolicited email and 8. Communications with children;
  • The PIPEDA Compliance Guide for Businesses a checklist from from Secure Privacy;
  • Cookie Consent in Canada Cassie November 2022; this is a helpful commentary which explains the role of PIPEDA and CASL in relation to 'implied' and 'express' consent in particular;
  • A comprehensive guide to privacy law in Canada, also from Cassie. The document itself is undated; the link carries a 2023 reference 
  • This January 2024 Data Protection Overview from OneTrust Data Guidance/ Fasken covers privacy legislation including some provincial examples, a wide selection of guidance documents primarily from the OPC (Office of the Privacy Commissioner) and some key case law. A rattling good read.

 

Developments in privacy law 

 

On 16 June 2022, the Canadian government introduced Bill C-27, which aims to introduce three new pieces of legislation: (i) the Consumer Privacy Protection Act (CPPA) replacing PIPEDA, (ii) the Personal Information and Data Protection Tribunal Act, and (iii) the Artificial Intelligence and Data Act (AIDA). The CPPA would introduce more severe penalties for non-compliance, enhance the Privacy Commissioner’s authority to oversee compliance, and create a right to request deletion of personal information. AIDA would create a framework for regulating the design, development, and use of certain artificial intelligence systems (taken from Chambers 2023 Canada) and New rules for a new era from Gowling WLG here. The bill at the time of writing (March 2024) is still in committee; see schedule here.

 

 

 

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4. Cookies & OBA

SECTION C: COOKIES AND OBA

 

Privacy issues should be reviewed with specialist advisors 

 

COOKIES

 

  • This section deals with cookies in the context of advertising delivery, taking in OBA. We don’t address ‘cookie statements/ notices’ specifically, though some guidance documents, which may contain references, are linked;
  • Cookie legislation/ regulation in Canada, especially as it relates to consent, is not the simplest, albeit that's the case in much of the world. Cookie Consent in Canada from Cassie November 2022 provides a clear explanation of the role of the laws that we show below and concludes: 'You must provide clear information about cookies at the time of collection. Your cookie notice must not simply be a link to your general privacy policy. You must provide a way for users to opt out of cookies.'
  • This January 2024 Data Protection Overview from OneTrust Data Guidance/ Fasken covers privacy legislation including some provincial examples, a wide selection of guidance documents primarily from the OPC (Office of the Privacy Commissioner) and some key case law;
  • The Personal Information Protection and Electronic Documents Act (PIPEDA) 'applies to private-sector organizations across Canada that collect, use or disclose personal information in the course of a commercial activity. Schedule 1 sets out the ten key principles that should be observed. See principles 3 to 5 especially (Consent, Limiting Collection and Limiting Use, Disclosure, and Retention) in this context. 

Some guidance from the Office of the Privacy Commissioner (OPC)

 

PIPEDA compliance help 

Online privacy, tracking, and cookies

Guidance for businesses doing e-marketing

Guidelines for obtaining meaningful consent

Ten tips for a better online privacy policy and improved privacy practice transparency

 

CASL

 

Provincial legislation

 

  • From the Office of the Privacy Commissioner (OPC): 'Several provincial laws have been deemed substantially similar to the PIPEDA. Under paragraph 26(2)(b), the Governor in Council can exempt an organization or class of organizations, an activity or a class of activities from PIPEDA if the collection, use or disclosure of personal information occurs within a province that has legislation that has been deemed substantially similar to the PIPEDA. This means that wherever the substantially similar provincial law applies, that law applies instead of PIPEDA.'
  • Note that Quebec's Law 25 formerly Bill 64 The Privacy Legislation Modernization Act differs in some respects from the federal equivalent privacy rules; see Everything You Need To Know About Quebec's Law 25 from Secure Privacy March 2024 and What Is Quebec’s Law 25? from Osano, which explains some of the key distinctions of this relatively new (the final phase came into effect September 2023) and representing 'the latest and most significant privacy legislation development in Canada.' (Gowling WLG)

 

 

OBA

 

  • OBA, or interest-based advertising as it is sometimes known (albeit perhaps a different concept), is the same as any other advertising in the sense that it is subject to the content rules we have set out in our overview section A and content section B (except those rules that are specific to broadcast media). Consent issues will be subject to PIPEDA regulation, discussed in the Privacy Commission's policy paper linked below; 
  • The DAAC (Digital Advertising Alliance of Canada) October 2022 Principles for Online Interest-Based Advertising represent the principal form of self-regulation in OBA and are part of the (pretty much) worldwide 'your adchoices' programme ('The DAAC establishes and enforces responsible privacy practices through the AdChoices program across the Canadian industry for relevant digital advertising, providing consumers with enhanced transparency and control through multifaceted principles that apply to multi-site data and cross-app data gathered in either desktop, mobile web, or mobile app environments.'). 2023 compliance report here;
  • Internationally, there are a number of regulatory issues around interest-based advertising, or such advertising that targets consumers based on their web activities. The Office of the Privacy Commission of Canada provides a Policy position on online behavioural advertising from August 2021.

 

 

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5. Emails & SMS

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

  • The self-regulatory and statutory rules set out under our earlier content section B apply in this medium (online commercial communications are in remit), except those rules that specify broadcast media. In addition, some provincial legislation, especially in sectors such as alcohol, should also be observed;  
  • The Competition Act includes under Section 52.01 False or misleading representation - sender or subject matter information (1) 'No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent a false or misleading representation in the sender information or subject matter information of an electronic message. (2) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent in an electronic message a representation that is false or misleading in a material respect.'

  • 'At the federal level, spam and other electronic threats are regulated by Canada’s anti-spam legislation (CASL) and related provisions in the Personal Information Protection and Electronic Documents Act (PIPEDA) and the Competition Act. PIPEDA, the federal private-sector privacy law, applies to the collection, use and disclosure of personal information in the course of commercial activities and contains restrictions relating to electronic address harvesting and e-marketing.' (From the OPC - Office of the Privacy Commission) and their Guidance for businesses doing e-marketing (January 2020). Other PIPEDA compliance help from the OPC is here;

  • Canada's Anti-Spam Law (CASL S.C. 2010, c. 23Purpose to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities, because that conduct (a) impairs the availability, reliability, efficiency and optimal use of electronic means to carry out commercial activities; (b) imposes additional costs on businesses and consumers; (c) compromises privacy and the security of confidential information; and (d) undermines the confidence of Canadians in the use of electronic means of communication to carry out their commercial activities in Canada and abroadSee Section 6 Requirements and Prohibitions on unsolicited electronic messages; 
  • Two sets of regulations accompany the Anti-Spam Law: the Electronic Commerce Protection Regulations (SOR/2013-221), which addresses inter alia some definitions, excluded commercial messages and conditions for use of consent and the Electronic Commerce Protection Regulations (CRTC) (SOR/2012-36) which covers 'Information to be included in commercial electronic messages'
  • Note that Quebec's Law 25 formerly Bill 64 The Privacy Legislation Modernization Act differs in some respects from the federal equivalent privacy rules; see Everything You Need To Know About Quebec's Law 25 from Secure Privacy March 2024 and What Is Quebec’s Law 25? from Osano, which explains some of the key distinctions of this relatively new (the final phase came into effect September 2023) and representing 'the latest and most significant privacy legislation development in Canada.' (Gowling WLG)

 

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6. Own Websites & SNS

SECTION C: MARKETERS' OWN WEBSITES

 

 

  • As with most jurisdictions, the safe assumption is that 'own advertising/ marketing communications on own websites' are in remit, or in other words subject to regulation;
  • Obviously, much information on marketer websites will not be advertising, but much that marketers may not consider to be advertising, in the authorities' eyes may qualify as such;
  • The definition of advertising from the Canadian Code of Ad Standards (EN) includes: "Advertising" and "advertisement(s)" are defined as any message (other than those excluded from the application of this Code), the content of which message is controlled directly or indirectly by the advertiser expressed in any language and communicated in any medium (except those listed under Exclusions - see below) to Canadians with the intent to influence their choice, opinion or behaviour;
  • Application: the Code applies to "advertising" by (or for): advertisers promoting the use of goods and services; entities seeking to improve their public image or advance a point of view, whether or not the advertising is for a commercial purpose; and governments, government departments and crown corporations;
  • Excluded from the terms “advertising” and “advertisement(s)” (as defined in this Code) are messages from an “entity” that/who has no “material connection” with the entity that makes, distributes, markets or advertises the product or service featured in the advertising or advertisement(s) (This exclusion reference will be in relation to the issue of Influencer Marketing, where a 'material connection' triggers disclosure requirements);
  • Excluded Media: the following media are excluded from the application of the Code: foreign media (namely media that originate outside Canada and contain the advertising in question) unless the advertiser is a Canadian person or entity; and packaging, wrappers and labels;
  • The Competition Act section 52 (1) states: No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever (emphasis ours) knowingly or recklessly make a representation to the public that is false or misleading in a material respect;
  • Content on marketers' own websites that qualifies per above will therefore be subject to the rules set out in our earlier content Section B and referenced above; 
  • Privacy issues that arise from connections with website users are covered under Cookies and OBA and Direct Electronic Communications headers and our section A Overview; privacy matters should be reviewed with specialist advisors. 

 

 

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7. Native Advertising

SECTION C: NATIVE ADVERTISING

 

 

  • Native advertising is subject to the advertising rules set out in our content section B;  in this context, the most important of those rules is clause 2 of the Code of Advertising Standards: Disguised Advertising Techniques: No advertisement shall be presented in a format or style that conceals the fact that it is an advertisement;
  • It is likely to be the case that a native ad that doesn't make clear that it is an ad would contravene the Competition Act Section 52 misleading representations and its 'sister' provincial consumer protection laws; a view supported by:
  • This June 2018 Final Report - Native advertising: information or illusion - of the Research Project from the ISED Office of Consumer Affairs Canada - see p.115 for recommendations and section 3 from p34 for the regulatory framework. This latter refers to a Competition Bureau 'working document' which we have been unable to trace; 
  • See also Native Advertising & the Canadian AdChoices Self-Regulatory Program for a context when 'Native' is also interest-based (March 2017).

 

 

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8. Telemarketing

9. Direct Postal Mail

10. Event Sponsorship/ Field Marketing

11. Sales Promotion

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

This website was created to provide international rules on marketing communications; it does not claim authority on specific sales promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation around pricing, for example, are checked for any provisions that may affect SP and included below. Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered a lottery and are generally illegal.

 

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  • It's a feature of the Canadian regulatory environment that there are a considerable number of rules relating to pricing and promotions in particular. We'll get to those; meanwhile we should remind that sales promotional material should also observe the ad content rules set out in our earlier section B. The Code of Advertising Standards applies to 'advertisers promoting the use of goods and services; amongst exclusions are 'packaging, wrappers and labels.'

 

FROM SELF-REGULATION 

 

From the Canadian Code of Advertising Standards

 

  • 3. Price Claims: (a) No advertisement shall include deceptive price claims or discounts, unrealistic price comparisons or exaggerated claims as to worth or value. "Regular Price", "Suggested Retail Price", "Manufacturer’s List Price" and "Fair Market Value" are deceptive terms when used by an advertiser to indicate a savings, unless they represent prices at which, in the market place where the advertisement appears, the advertiser actually sold a substantial volume of the advertised product or service within a reasonable period of time (such as six months) immediately before or after making the representation in the advertisement; or offered the product or service for sale in good faith for a substantial period of time (such as six months) immediately before or after making the representation in the advertisement.
    (b) Where price discounts are offered, qualifying statements such as "up to", "XX off", etc., must be in easily readable type, in close proximity to the prices quoted and, where practical, legitimate regular prices must be included.
    (c) Prices quoted in advertisements in Canadian media, other than in Canadian funds, must be so identified.
  • 4. Bait and Switch: Advertisements must not misrepresent the consumer’s opportunity to purchase the goods and services at the terms presented. If supply of the sale item is limited, or the seller can fulfill only limited demand, this must be clearly stated in the advertisement.

 

FROM LEGISLATION 

 

From the Competition Act (EN)

  • Promotional contests 74.06 A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, the supply or use of a product, or for the purpose of promoting, directly or indirectly, any business interest, conducts any contest, lottery, game of chance or skill, or mixed chance and skill, or otherwise disposes of any product or other benefit by any mode of chance, skill or mixed chance and skill whatever, where (a) adequate and fair disclosure is not made of the number and approximate value of the prizes, of the area or areas to which they relate and of any fact within the knowledge of the person that affects materially the chances of winning; (b) distribution of the prizes is unduly delayed; or (c) selection of participants or distribution of prizes is not made on the basis of skill or on a random basis in any area to which prizes have been allocated.

  • Deceptive notice of winning a prize 53 (1) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, send or cause to be sent by electronic or regular mail or by any other means a document or notice in any form, if the document or notice gives the general impression that the recipient has won, will win, or will on doing a particular act win, a prize or other benefit, and if the recipient is asked or given the option to pay money, incur a cost or do anything that will incur a cost.

    Non-application (2) Subsection (1) does not apply if the recipient actually wins the prize or other benefit and the person who sends or causes the notice or document to be sent (a) makes adequate and fair disclosure of the number and approximate value of the prizes or benefits, of the area or areas to which they have been allocated and of any fact within the person’s knowledge that materially affects the chances of winning; (b) distributes the prizes or benefits without unreasonable delay; and (c) selects participants or distributes the prizes or benefits randomly, or on the basis of the participants’ skill, in any area to which the prizes or benefits have been allocated.

  • Drip pricing (1.1) For greater certainty, the making of a representation of a price that is not attainable due to fixed obligatory charges or fees constitutes a false or misleading representation, unless the obligatory charges or fees represent only an amount imposed by or under an Act of Parliament or the legislature of a province.

  • Ordinary price: suppliers generally (2) Subject to subsection (3), a person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, makes a representation to the public concerning the price at which a product or like products have been, are or will be ordinarily supplied where suppliers generally in the relevant geographic market, having regard to the nature of the product, (a) have not sold a substantial volume of the product at that price or a higher price within a reasonable period of time before or after the making of the representation, as the case may be; and (b) have not offered the product at that price or a higher price in good faith for a substantial period of time recently before or immediately after the making of the representation, as the case may be.
  • Ordinary price: supplier’s own (3) A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, makes a representation to the public as to price that is clearly specified to be the price at which a product or like products have been, are or will be ordinarily supplied by the person making the representation where that person, having regard to the nature of the product and the relevant geographic market, (a) has not sold a substantial volume of the product at that price or a higher price within a reasonable period of time before or after the making of the representation, as the case may be; and (b) has not offered the product at that price or a higher price in good faith for a substantial period of time recently before or immediately after the making of the representation, as the case may be.

 

From the Competition Bureau 'Misleading representations and deceptive marketing practices'

The table below extracts relevant practices from the original shown in the link

 

Practice  Section  Description 

False or mis

leading represent

ations

section 52 & para 74.01(1)(a) It is against the law to make materially false or misleading representations to promote a product, service or business interest. A representation is “material” if the general impression it conveys leads someone to take a particular course of action, like buying or using a product or service. A “representation” refers to any marketing material, including online and in-store advertisements, direct mail, social media messages, promotional emails, and endorsements, among other things.
Drip pricing  sub-sec 52(1.3) sub-sec 74.01(1.1) Drip pricing involves offering a product or service at a price that is unattainable because consumers must also pay additional charges or fees to buy the product or service. Subsections 52(1.3) and 74.01(1.1) confirm that offering a price that a customer cannot actually attain because there are mandatory fixed additional (non-governmental) charges or fees is a false or misleading representation.
Ordinary selling price sub-secs 74.01 A price cannot be referred to as the ordinary price when it is inflated to create the illusion of offering a better deal.
Bait and switch section 74.04 Bait and switch selling is when a product is advertised at a “bargain price” but the product is not available for sale in reasonable quantities.
Deceptive prize notices section 53 It is a criminal offense to send prize notices that give recipients the general impression that they have won (or will win) a prize but requires them to pay a fee or incur a cost to collect their prize unless they have actually won the prize and the sender makes specific disclosures and satisfies certain other requirements.
Promotion contests section 74.06 Contest organizers must: disclose the number and approximate value of prizes and information relating to the chances of winning. They cannot unduly delay the distribution of prizes, and must choose the participants and award the prizes either randomly or on the basis of skill.

 

 

  • The Competition Bureau: Promotional Contests Enforcement Guidelines. This publication outlines the approach that the Commissioner of Competition is taking in enforcing the promotional contests provision of the Act. The guidelines contained in this publication are intended to help the general public, business people and their legal advisors to better understand section 74.06 of the Act and the general approach taken by the Competition Bureau to enforce that provision.

 

From lawyer commentary
And a drip pricing case 

 

 

Do any specific rules apply to advertising featuring prices?
Are consumer promotions specifically regulated as advertising (as distinct from contract law)? If so, how? 

Are there specific rules on promotional prize draws and skill competitions? If incorrectly executed, can these be classed as illegal lotteries? If so, what are the possible consequences?

Must promotional prize competitions be registered with a state agency or authority? 

 

 

 

 

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D. Advice & Clearance

E. Links

SECTION E SOURCES/ LINKS

 

 

KEY NATIONAL LEGISLATION 

The Competition Act. '1.1 The purpose of this Act is to maintain and encourage competition in Canada in order to promote the efficiency and adaptability of the Canadian economy, in order to expand opportunities for Canadian participation in world markets while at the same time recognizing the role of foreign competition in Canada, in order to ensure that small and medium-sized enterprises have an equitable opportunity to participate in the Canadian economy and in order to provide consumers with competitive prices and product choices.' For our purposes, the specific relevance of the act is under Section 52(1), which states: 'No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever knowingly or recklessly make a representation to the public that is false or misleading in a material respect.'

laws-lois.justice.gc.ca/eng/acts/c-34/FullText.html

 

The Food and Drug Act R.S.C., 1985, c. F-27 'An Act respecting food, drugs, cosmetics and therapeutic devices.' Part I General Prohibited advertising. 3 (1) 'No person shall advertise any food, drug, cosmetic or device to the general public as a treatment, preventative or cure for any of the diseases, disorders or abnormal physical states referred to in Schedule A.1. Prohibited claims - animal testing 16.3 (1) No person shall make a claim on the label of or in an advertisement for a cosmetic that is likely to create an impression that the cosmetic was not tested on animals after the day on which this section comes into force unless the person has evidence that no such testing occurred after that day.'

laws-lois.justice.gc.ca/eng/acts/f-27/FullText.html

 

Privacy

 

Personal Information Protection and Electronic Documents Act (PIPEDA - S.C. 2000, c. 5. Assented to 2000-04-13). 'An Act to support and promote electronic commerce by protecting personal information that is collected, used or disclosed in certain circumstances, by providing for the use of electronic means to communicate or record information or transactions and by amending the Canada Evidence Act, the Statutory Instruments Act and the Statute Revision Act.' This is the current federal privacy law; see below for developments. 

laws-lois.justice.gc.ca/eng/acts/p-8.6/FullText.html

 

On 16 June 2022, the Canadian government introduced Bill C-27, which aims to introduce three new pieces of legislation: (i) the Consumer Privacy Protection Act (CPPA), (ii) the Personal Information and Data Protection Tribunal Act, and (iii) the Artificial Intelligence and Data Act (AIDA). The CPPA would introduce more severe penalties for non-compliance, enhance the Privacy Commissioner’s authority to oversee compliance, and create a right to request deletion of personal information. AIDA would create a framework for regulating the design, development, and use of certain artificial intelligence systems (taken from Chambers 2023 Canada) and New rules for a new era from Gowling WLG here. The bill at the time of writing (March 2024) is still in committee; see schedule here.

 

Canada's Anti-Spam Law (S.C. 2010, c. 23) An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (S.C. 2010, c. 23)

laws-lois.justice.gc.ca/eng/acts/E-1.6/FullText.html

 

 

SELF-REGULATION

 

 

The Canadian Code of Ad Standards. From definitions: "Advertising" and "advertisement(s)" are defined as any message (other than those excluded from the application of this Code), the content of which message is controlled directly or indirectly by the advertiser expressed in any language and communicated in any medium (except those listed under Exclusions - see below) to Canadians with the intent to influence their choice, opinion or behaviour. Application: the Code applies to "advertising" by (or for): advertisers promoting the use of goods and services; entities seeking to improve their public image or advance a point of view, whether or not the advertising is for a commercial purpose; and governments, government departments and crown corporations

Excluded from the terms “advertising” and “advertisement(s)” (as defined in this Code) are messages from an “entity” that/who has no “material connection” with the entity that makes, distributes, markets or advertises the product or service featured in the advertising or advertisement(s) (This exclusion reference will be in relation to the issue of Influencer Marketing, where a 'material connection' triggers disclosure requirements). Excluded Media: the following media are excluded from the application of the Code: foreign media (namely media that originate outside Canada and contain the advertising in question) unless the advertiser is a Canadian person or entity; and packaging, wrappers and labels. Importantly, the code includes 'Interpretation Guidelines' that 'enhance industry and public understanding of the interpretation and application of the Code’s 14 clauses'. The Interpretation Guidelines can be found here and cover issues such as humour, ads to children, pricing, environmental claims etc. An additional key element of the code is Influencer Marketing Disclosure Guidelines from Fall 2023. The code in English:

adstandards.ca/code/the-code-online/

 

Beer Industry's Responsible Advertising and Marketing Code (March 2020). 'The Responsible Advertising and Marketing Code (the Code) applies to all Beer Canada member activities undertaken to advertise and market their products. As responsible brewers, our members want to ensure that any commercial communication is directed only to those of legal purchase age and carried out in a socially responsible manner. Beer Canada represents over 50 Canadian brewing companies that account for 90% of beer made in Canada. As a statement of principles and best practices, the Code is intended to complement, support and enhance federal and provincial/ territorial alcohol advertising and marketing rules as well as those codes administered by Ad Standards (Advertising Standards Canada). The Code applies to all forms of brand marketing and commercial communication for all member products that contain alcohol, or are de-alcoholized or nonalcoholic beer product. '

industry.beercanada.com/sites/default/files/beer_canada_-_responsible_advertising_code_-_english_-_march_2020.pdf

 

Spirits Canada's Code of Responsible Advertising and Marketing (2018). Scope: the Code applies to all activities undertaken to advertise and market distilled spirits. Spirits Canada Members are encouraged to ensure all the beverage alcohol products they represent in Canada including maltbased, cider or wine also comply with the Code. These activities include brand advertising, consumer communications, promotional events, packaging, labels, and sales materials. The provisions of the Code apply to every type of print and electronic media, including the internet, and any on-line or digital communication, used to advertise or market beverage alcohol. These provisions also apply to every type of promotional or marketing activity or event, including all product placements (e.g. movies, television programs, music videos, video games) and sponsorships. 

adstandards.ca/wp-content/uploads/Spirits-Canada-Code-of-Responsible-Advertising-and-Marketing-ASC-FINAL-2017-1.pdf

acrobat.adobe.com/id/urn:aaid:sc:VA6C2:8ff70225-4976-458c-9b2c-702eabfbd98d (FR)

 

 

 

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