General Impressions Matter: US FTC, Australian ACCC Take Issue Over Headline Claims (and Some Compliance Tips)

In the advertising law world, general impressions matter – a lot. In Canada, the federal Competition Act even includes specific sections that provide that the general impression of a claim (i.e., not merely the literal meaning of an advertising claim or what is included in disclaimers or contracts) is to be taken into account by a court or the Competition Tribunal in determining whether or not a claim is false or misleading. In two cases earlier today that illustrate this key advertising law principle, the U.S. FTC and Australian ACCC both announced the results of enforcement against advertisers in a variety of industries relating to allegedly false “headline” claims (see: Federal Court orders $300,000 penalty after finding ‘free range’ egg claims to be misleading and Operation ‘Full Disclosure’ Targets More Than 60 National Advertisers). In the Australian case, the Australian Federal Court declared (by consent) that a chicken producer made … read more »

Canadian Competition Bureau Issues Updated Competition Compliance Guidelines

Canada’s Competition Bureau (the “Bureau”) has been working over the past year or two to update its competition law compliance guidelines and policies. Competition law compliance has also figured prominently in recent remarks by Canada’s new Commissioner of Competition, John Pecman (see for example: here). As part of the Bureau’s initiative to raise competition compliance awareness, on September 18th the Bureau issued a revised draft Corporate Compliance Programs Bulletin for public comment (see: here and here).  In releasing the new Bulletin the Bureau said: “In a speech at the Canadian Bar Association’s Annual Competition Law Fall Conference in Ottawa, Commissioner Pecman presented the draft Bulletin as a key part of the Bureau’s ongoing efforts to support healthy competition in Canada by promoting compliance. Compliance with the law ensures competitive markets, spurring innovation and economic activity that benefits businesses and delivers lower prices and more choice to consumers. The Commissioner emphasized that … read more »

Magic Green Beans for Weight Loss? Not Worth Trading a Cow For Says US FTC

In an interesting case that caught my eye earlier today, the U.S. FTC announced a proposed settlement with Texas-based Applied Food Sciences Inc. (AFS) in relation to allegedly “baseless” green coffee extract weight loss claims. According to the FTC, AFS, which sells a green coffee ingredient used in foods and dietary supplements, made public claims (including following publicity on the Dr. Oz Show) that subjects lost weight “without diet or exercise” using their product. These claims were based on an Indian clinical trial which, in the FTC’s view, was a “botched study” that didn’t prove anything. More particularly with respect to the underlying study, the FTC took the position that, among other things: the study’s lead investigator altered the weights and other key measurements of subjects; changed the length of the trial; and misstated whether subjects were taking a placebo or product during the trial. The FTC also concluded that … read more »

IP Law: A Primer on Canadian Trademark Law

WHAT ARE TRADEMARKS? A mark (words, names, symbols, devices, sounds, smells, trade dress) used to distinguish the goods and services of one business from similar goods and services of all other businesses. In Canada, it is possible to register the non-functional shape of a product or its packaging (called distinguishing guise, or “trade dress”). It is also possible to register certification marks (i.e. marks used to demonstrate that goods and services of different companies meet certain criteria set out by the owner of the certification mark). WHAT DO TRADEMARKS PROTECT? Trademarks can protect: words (iPad); symbols and logos (the Nike swoosh); design (Mickey Mouse character); slogans (I’m Lovin’ It); sounds (MGM Roaring Lion sound, Nokia tune); the non-functional shape of the productor its packaging (Coca-Cola bottle); colour (Magenta color registered by T-Mobile). It is important to understand that trademarks do not grant a monopoly over the words, symbols, taglines, etc. … read more »

Contest Law: A Few Interesting Recent Questions, Including CASL & Criminal Code

In Canada, “competition law” overlaps with advertising and marketing law. One of the reasons for this is because the federal Competition Act in Canada includes a number of advertising and marketing law sections, including some specific provisions relating to promotional contests. (Though of course contests in Canada can involve a number of other areas of law including: contract law, the Criminal Code, privacy law, intellectual property law and now Canada’s recently in force anti-spam law – CASL.) Based on the Competition Act sections and my own general interest in contests (as well as my contest law site – see: Canadian Contest & Promotions Law), I tend to both work on a lot of contests and receive quite a few contest related questions and calls. For example, a few days ago I received a few new Canadian contest law related questions over the web with a request that I write a … read more »

“Your Product Is Great” (What Was It Again?): Australian Carpet Cleaning Co. Sued for Alleged Fake Reviews, Some Canadian Points

Each morning, before I begin ‘real work’, I usually spend a little time on an Internet sweep of interesting advertising and competition law cases that have developed overnight or come into my inbox. Earlier today an interesting new advertising law enforcement action by the Australian ACCC caught my eye, in which the ACCC has commenced Federal Court proceedings against a carpet cleaning franchisor (Whistle (1979) Pty Ltd. – the franchisor of the “Electrodry” Carpet Cleaning business) for allegedly being involved in posting fake online testimonials. See: ACCC takes action against Electrodry alleging fake testimonials or reviews. The ACCC alleges that Electrodry posted fake testimonials through contractors and either induced, or attempted to induce, franchisees to post fake Internet testimonials contrary to Australian consumer law. Some Key Canadian Testimonial Points Given how common online testimonials and reviews are, and their potential usefulness to businesses of all types, I thought I would … read more »

CASL (Anti-spam Law): A Few Impacts of the New Law as the “Coming Into Force Dust Settles”

After a last minute flurry of inquiries and companies and individuals finalizing preparations to comply, Canada’s new federal anti-spam legislation will at long last (or as dreaded) come into force on July 1st.  So, for companies and individuals that market electronically and haven’t prepared by Tuesday, it will be “pens down” so to speak or risk the rather draconian potential penalties under the new law. I know you’ve all heard a lot about that so I won’t dwell on it here – for some of the key requirements of the new law see: here.  As such, rather than summarize the main requirements of this complex and rather cumbersome new law, I thought I’d highlight a few of what I see as likely major implications. These include: Content marketing & blogs: It seems to me that the new law will mean a renewed value for paper (i.e., that stuff from trees), … read more »

CASL (Anti-spam Law) Update: CRTC Head Outlines CASL Enforcement Priorities

With Canada’s new anti-spam law (CASL) coming into force right around the corner (next week on July 1st) Canadian and international businesses that market to Canadians are finalizing initial CASL compliance preparations (including a flurry of consent request e-mails – which will not be permitted to request consent post-July 1st, unless they fall within the scope of the transition provision of CASL – i.e., are sent to existing business or non-business contacts as defined). Given the significant marketing impacts of the new law and remaining uncertainties about just how the CRTC and other enforcement agencies will approach it, this Economic Club of Canada speech yesterday by the CRTC’s chief Jean-Pierre Blais caught my eye, as it did a number of Canadian journalists covering the growing number of CASL developments: Chairman Jean-Pierre Blais speech on how the CRTC is improving the security and safety of Canadians given at the Economic Club … read more »

What Is Competition Law?: A Few Interesting, Frequent and Important Competition & Advertising Law Questions – Part III

June 26, 2014 Several days ago I posted several short notes discussing a few of the more interesting, frequent and important competition and advertising law questions I’ve received over the past few years (see: here and here). Today I thought I would write one more with a few more “real life” competition/advertising law FAQs – i.e., not hypotheticals worked up by a lawyer but questions I’ve received over the past few years. Like my first several posts, these questions reflect a few different basic (but important) aspects of Canadian competition and advertising laws, as well as the types of files I tend to work on. A Few Interesting, Frequent and Important Competition & Advertising Law Questions – Part III Q: COMPETITION BUREAU INVESTIGATIONS: How does the Competition Bureau discover cases?: I get this question quite a bit. The answer is that the Competition Bureau can decide to start an investigation … read more »

CASL (Anti-spam Law) & Social Media – What’s the Deal With Social?

Over the past several months I’ve begun to increasingly turn my mind both to Canada’s new anti-spam legislation (CASL) and its potential application to social media in particular.  In general, CASL will, once largely in force July 1st, create a mandatory advance express consent regime for commercial electronic messages (CEMs) sent to or from Canadian computer systems. The new law will, among other things, also require that certain “form” (i.e., identification), unsubscribe and record-keeping obligations be met after in force. What remains now, and going forward, is to determine how the new law applies to particular industries and types of electronic marketing.  So, for this post, how do the new CASL rules impact social media? What is the difference between mere blogging and messages sent to an electronic address? Or messages sent via an electronic messaging system? What exemptions from the law altogether or categories of implied consent might apply … read more »