Quackery Books

Misleading Advertising in Canada

• Misleading Advertising Decriminalized: - June 1999All but most serious misleading advertising cases will now be pursued in civil proceedings by the Commissioner in the Competition Tribunal, the Federal Court, or Provincial Superior Courts. Available remedies will include prohibition orders, corrective notices and administrative monetary penalties (up to &100,000.00 for first time corporate offenders). Criminal prosecution remains an option in serious cases.

• Karl Dore's sabbatical project is up on the UNB web site This is a complete reference site for New Brunswick's consumer products warranty legislation, featuring three separate guides Ð a Consumer Guide, a Business Guide, and a Legal Guide Ð as well as the full text of the legislation, cases on the legislation, both reported and unreported, the full text of law review articles on the legislation and the full text of the background law reform reports preceding the legislation. The site will be of interest to anyone searching for information on NB law re any of the following: contract, tort liability for dangerously defective goods, consumer protection law, warranties, misleading advertising, misrepresentations, defective goods.

• Competition Bureau Releases Draft Guidelines to Advertising on the Internet Osler, Hoskin and Harcourt law firm
• Misleading Advertising Faces New Civil Regime Under Competition Act - Intellectual Property Law Review Misleading Advertising Faces New Civil Regime Under Competition Act
  By: Carla R. Swansburg
  The Competition Act ("the Act") was amended in March 1999 to provide a whole new regime, under section 74.11, for dealing with misleading and deceptive advertising practices. The Competition Bureau implemented this new civil regime to, in its own words, "address most instances of misleading advertising and deceptive marketing practices."

  Complaint Procedures

  Under the new civil regime, a complaint must be lodged with the Commissioner of Competition in order to engage the process. A complaint may be lodged by: (a) calling the Competition Bureau at its toll-free telephone number (1-800-348-5358); or (b) registering a complaint over the Internet - http://strategis.ic.gc.ca by completing a confidential complaint/enquiry form.

• Advertising That Hurts - by Marilyn Field-Marsham, Toronto When does a puff become a problem? Marilyn Field-Marsham discusses, in a series of three articles, recent cases concerning false or misleading advertising, comparative advertising and unsupportable advertising claims. The first article appearing in this issue gives an overview of available recourse to attack misleading or comparative or unsupportable advertising and, more particularly, deals with claims under the Competition Act. The second article will cover claims under the Trade-marks Act, and the third article will discuss the factors that the courts consider in assessing advertisements and give guidelines for advertisers to minimize exposure and for targeted competitors to restrain offensive advertising.

  The advertiser bears the onus of proving, on a balance of probabilities, that its representations are based upon proper and adequate tests.

  The representation made in an ad -- that is, the purported conclusion of testing -- must be justifiable in light of the test results.

• Competition and Trade Practice Laws - Doing Business in Canada

  Misleading Advertising

  Recent amendments to the Act have resulted in a fundamental change to the misleading advertising provisions of the Act. Prior to the amendments, misleading advertising and deceptive marketing practices were strict liability criminal offences under the Act. With the amendments, a non-criminal regime in respect of deceptive marketing practices has been created which is intended to ensure more effective enforcement and compliance. Accordingly, following passage of these amendments, criminal prosecution is still possible where there is "clear and compelling" evidence that the accused knowingly or recklessly made, or permitted to be made, a false or misleading representation to the public. As a result of these amendments, most of the deceptive marketing practices that were previously subject to criminal prosecution under the Act (e.g., misleading advertising, unsubstantiated claims or warranties, misleading ordinary price claims, bait and switch selling, sales above advertised price) will now be treated as reviewable conduct. These will be discussed in greater detail below.

  The CommissionerÕs decision to proceed under either the civil or criminal enforcement regime will preclude him from proceeding under the other regime.

• The Canadian Competition Act

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