The global spread of COVID-19 has had significant impacts in most major areas of law, including Canadian competition and advertising law.
Both federal and provincial governments in Canada have been introducing unprecedented new legislation and orders relating to key aspects of competition and advertising law, including price-fixing, price gouging, advertising of COVID-19 related products and services and performance claims (e.g., in relation to vaccines, testing, medical products and other therapies).
Historic and unprecedented price-regulation and associated penalties are also being introduced in relation to critical COVID-19 related products.
Below is a summary of recent COVID-19 related competition and advertising law developments.
ONTARIO REVISES LIST OF ESSENTIAL WORKPLACES (APRIL 3, 2020)
On April 3, 2020, the Ontario Government issued a revised list of 44 essential workplaces that may remain open during the COVID-19 outbreak. This list, with workplaces in 16 categories, has been shortened from the previous list of 74 essential workplaces that was issued on March 23, 2020. For more information, see: List of essential workplaces.
PRICE GOUGING REGULATIONS (ONTARIO) ISSUED – EMERGENCY MANAGEMENT AND CIVIL PROTECTION ACT (APRIL 1, 2020)
On April 1, 2020, the Ontario Government issued its regulations under the Ontario Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9. The regulations prohibit selling or offering to sell necessary goods at an unconscionable price. “Necessary goods” are defined to include masks and gloves used as personal protective equipment in relation to infections, non-prescription medications for the treatment of the symptoms of COVID-19, disinfecting agents intended for cleaning and disinfecting objects or humans and some personal hygiene products (e.g., soap products and paper products). “Unconscionable price” is defined to include a price that grossly exceeds the price at which similar goods are available to like consumers. For more information, see: Order Under Subsection 7.0.2(4) – Prohibition on Certain Persons Charging Unconscionable Prices For Sales of Necessary Goods.
PRICE GOUGING (ONTARIO) – REPORTING VIOLATIONS (March 28, 2020)
The Ontario Government launched an online price gouging reporting form in relation to household cleaners and disinfectants, personal hygiene products (e.g., soap and paper products), personal protective health equipment (e.g., face masks or medical gloves) and other products. This reporting mechanism is related the Ontario Government’s emergency order below relating to the resale of necessary COVID-19 goods. For more information, see: Report price gouging related to COVID-19.
PRICE GOUGING (ONTARIO) – EMERGENCY ORDER (MARCH 28, 2020)
The Ontario Government announced new penalties to combat price gouging in relation to COVID-19 related “necessary goods” including masks and gloves used as personal protective equipment in relation to infections; non-prescription medications for the treatment of the symptoms of the coronavirus; disinfecting agents intended for cleaning and disinfecting objects or humans; and personal hygiene products, including soap products and paper products. The emergency order issued under the Ontario Emergency Management and Civil Protection Act by the Provincial Government applies to retail businesses and individuals who cannot charge “unconscionable prices” for necessary goods. An “unconscionable price” is defined as a “price that grossly exceeds the price at which similar goods are readily available to like consumers”. Penalties include fines ranging from $750 (for individuals) to $10 million (for corporations) and imprisonment for up to one year in jail. There is also potential director and officer liability. For more information, see: Ontario Protecting Consumers from Price Gouging.
ONTARIO CONSUMER PROTECTION LEGISLATION (MARCH 28, 2020)
The Ontario Government announced that it was consulting on other ways to improve consumer protections in Ontario in light of the COVID-19 outbreak. For more information, see: Ontario Protecting Consumers from Price Gouging.
PRICE GOUGING (BRITISH COLUMBIA) (MARCH 26, 2020)
The British Columbia Government announced that it was taking steps to invoke its Emergency Program Act to issue a series of ministerial orders to, among other things, ban the secondary resale of food, medical supplies, personal protective equipment, cleaning and other essential supplies (and restrict quantities of items purchased at point of sale). For more information, see: Province takes unprecedented steps to support COVID-19 response.
COMPETITION TRIBUNAL NOTICE (MARCH 23, 2020)
The federal Competition Tribunal issued a Notice regarding the COVID-19 pandemic. The Tribunal’s Notice includes, among other things, information about access to the Tribunal’s offices, filing of case documents and deadlines and Tribunal hearings. For more information, see: Notice regarding the COVID-19 Pandemic.
COMPETITION BUREAU ENFORCEMENT PRIORITIES (MARCH 20, 2020)
The federal Competition Bureau announced its two competition law enforcement priorities in relation to COVID-19: deceptive marketing practices (e.g., false or misleading claims about a product’s ability to prevent, treat or cure the virus or performance claims); and collusion by competing businesses (e.g., illegal agreements to fix prices, divide/allocate markets, restrict output or rig bid/tenders). The Bureau also reminded Canadians about how they can file competition law complaints. For more information, see: Statement from the Commissioner of Competition regarding enforcement during the COVID-19 coronavirus situation.
COMPETITION BUREAU TIMELINES FOR MERGER REVIEW (MARCH 18, 2020)
The federal Competition Bureau issued an open letter to the Canadian Bar Association relating to the impacts of the COVID-19 pandemic, including on its review of mergers and its service standards. For more information, see: Letter from the Commissioner to the Canadian Bar Association regarding impacts of the COVID-19 pandemic.
U.S. FDA WARNING LETTER TO CANADIAN COMPANY VIVIFY HOLISTIC CLINIC FOR ALLEGEDLY SELLING “FRAUDULENT COVID-19 PRODUCTS” (MARCH 6, 2020)
For more information, see: Coronavirus Update: FDA and FTC Warn Seven Companies Selling Fraudulent Products that Claim to Treat or Prevent COVID-19.
__________________
For more information about Canadian competition, advertising and consumer protection laws, see: Advertising Law, Bid-Rigging, Competition Bureau Enforcement, Conspiracy (Cartels), Misleading Advertising and Performance Claims.
____________________
SERVICES AND CONTACT
I am a Toronto competition/antitrust lawyer and advertising/marketing lawyer who helps clients in Toronto, Canada and the US practically navigate Canada’s advertising and marketing laws and offers Canadian advertising/marketing law services in relation to print, online, new media, social media and e-mail marketing.
My Canadian advertising/marketing law services include advice in relation to: anti-spam legislation (CASL); Competition Bureau complaints; the general misleading advertising provisions of the federal 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, drip pricing, astroturfing and native advertising.
For more information about my services, see: services
To contact me about a potential legal matter, see: contact
For more regulatory law updates follow me on Twitter: @CanadaAttorney
