Advertising and marketing in Canada is highly regulated. Canadian advertising laws exist at the federal, provincial and municipal levels.
These include laws of “general application” (e.g., the general misleading advertising provisions of the Competition Act and provincial consumer protection legislation) and legislation that governs particular types of advertising (e.g., performance claims, anti-spam law, packaging and labeling and food and drug legislation).
In addition to legislative rules (i.e., the “black letter law”), there are a variety of sector and profession specific codes of conduct, as well as social media sites’ rules, that may apply, depending on the type of promotion.
A significant part of advertising law is determining whether a particular type of advertising, such as a performance claim, contest, testimonial or claims relating to a specific industry, is subject to regulatory rules. Some of the most important areas of Canadian advertising law are summarized below and in the pages on this site.
Given the potential severe penalties and impact to a brand of violating the advertising laws, it is important for companies, agencies and other organizations to consult qualified counsel before launching advertising campaigns.
At the federal level, the Competition Act is the primary legislation governing advertising and marketing. The Competition Act contains both general criminal and civil misleading advertising provisions, which prohibit false or misleading representations made to promote a product or any business interest.
The Competition Act also contains a wide range of provisions that prohibit or regulate specific types of advertising practices. These include sections relating to performance claims, testimonials, bait-and-switch advertising, sales above advertised prices, “ordinary selling price” provisions, promotional contests, telemarketing, multi-level marketing, pyramid selling schemes and double ticketing.
In general, it is important before conducting a particular type of marketing to review whether any provisions of the Competition Act may apply.
The potential penalties for violating the civil misleading advertising provisions of the Competition Act include Competition Tribunal or court orders to cease the conduct, publish a corrective notice, pay restitution, administrative monetary penalties of up to $750,000 for individuals and $10 million for corporations. The potential penalties for contravening the criminal misleading advertising sections of the Competition Act include imprisonment and criminal fines.
For more information about other sections of the Competition Act, see Canadian Competition & Regulatory Law.
CONSUMER PROTECTION LEGISLATION
In addition to the federal Competition Act, provincial consumer protection legislation exists across Canada.
Canadian provincial consumer protection rules differ depending on the particular province, but tend to include both general misleading advertising rules (for example, false, misleading or deceptive representations about products or services) and rules governing specific industry sectors (for example, direct sales, gift cards, auto repairs, fitness clubs and payday loans).
For more information, see for example: Ontario Consumer Protection Act and British Columbia Business Practices and Consumer Protection Act.
ANTI-SPAM LAW (CASL)
On December 15, 2010, Canada’s new federal anti-spam legislation (CASL), one of the strictest in the world, received Royal Assent. CASL came largely into force on July 1, 2014.
CASL creates an “opt-in” regime for commercial electronic marketing and amends four federal statutes: the Canadian Radio-television and Telecommunications Commission Act; Competition Act; Personal Information Protection and Electronic Documents Act; and Telecommunications Act.
In general, CASL requires express or implied consent for the sending of “commercial electronic messages” and imposes certain form (i.e., disclosure) and opt-out (i.e., unsubscribe) requirements for electronic communications.
For more information, see Anti-spam (CASL).
Promotional contests in Canada are largely governed by the federal Competition Act, Criminal Code and contract law. Other laws can also apply depending on the type of contest, including privacy, anti-spam or intellectual property law.
In addition, Quebec has a separate regulatory regime governing contests, which means that Quebec requirements should be complied with (or contest eligibility restricted to Canadian residents excluding Quebec).
Given that the improper operation of a promotional contest can result in civil or criminal liability, or lead to adverse publicity or negative goodwill, it is important to review proposed contests for Canadian legal compliance.
Operating contests in Canada typically includes the preparation of short rules (mandatory upfront statutory disclosure), long rules (full terms and conditions governing the promotion), winner releases, a skill-testing question and a review of draft creative for advertising law compliance before launch.
In addition to federal, provincial and municipal advertising law rules, many industries (particularly the professions) have industry codes of conduct. These codes of conduct commonly include advertising and marketing law rules.
While such rules are generally not legislation (unless a regulator has regulatory powers relating to advertising), it can be very important to review industry rules before launching an advertising campaign. The failure to review industry codes of conduct can lead to discipline or expulsion from industry groups in some case.
SOCIAL MEDIA RULES
Most advertising and marketing campaigns now include some or many social media sites, which may include Facebook, Twitter, Instagram, Pinterest or other social sites.
SERVICES AND CONTACT
I help clients practically navigate Canada’s advertising and marketing laws and offer Canadian advertising law services in relation to print, online, new media, social media and e-mail marketing.
My Canadian advertising law services include advice in relation to: anti-spam legislation (CASL); Competition Bureau complaints; the general misleading advertising provisions of the Competition Act; Internet, new media and social media advertising and marketing; promotional contests (sweepstakes); and sales and promotions. I also provide advice relating to specific types of advertising issues, including performance claims, testimonials, disclaimers and native advertising.
To contact me about a potential legal matter see: contact
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