Label.
Canadian Food Inspection Agency: “includes any legend, word or mark attached to, included in, belonging to or accompanying any food, drug, cosmetic, device or package.” See also Food and Drugs Act.
Libel.
Foulidis v. Ford, 2012 ONSC: “The plaintiff must prove four things on the balance of probability to prove a libel in this case: (1) that the defendant spoke the words in issue; (2) that the defendant published the words in issue to one or more third parties; (3) that the words in issue referred to the plaintiff; (4) that the words in issue were defamatory of the plaintiff.”
Canadian Bar Association, “Defamation: Libel and Slander” (online): “Libel is the type of defamation with a permanent record, like a newspaper, a letter, a website posting, an email, a picture, or a radio or TV broadcast. If you can prove that someone libeled you, and that person does not have a good defence … then a court will presume that you suffered damages and award you money to pay for your damaged reputation. But going to Supreme Court is expensive and even if you win, you may not get as much as it costs you to sue. In deciding on damages, the Court will consider your position in the community. For example, if you are a professional, damages may be higher.”
Lift letter.
R. v. David Stucky, 2006 CanLII 41523 (Ont. S.C.): “A lift letter is a promotional technique, routinely used in direct mail promotions, urging further consideration of the initial offer before its expiration.”
Like-baiting.
A type of spam. Facebook, “News Feed FYI: Cleaning Up News Feed Spam” (April 10, 2014): “’Like-baiting’ is when a post explicitly asks News Feed readers to like, comment or share the post in order to get additional distribution beyond what the post would normally receive.”
Limited time offers.
“’Limited time offers’ and ‘countdown clocks’, types of urgency cues, could create the false or misleading impression that consumers must purchase a product quickly prior to the end of a promotion when, in fact, the promotion is renewed or replaced by another.” Competition Bureau, News Release, The Dufresne Group to pay $3.25 million penalty to settle Competition Bureau concerns over marketing claims (September 27, 2023).
Literal meaning.
Generally speaking, advertising or marketing in Canada can be misleading under federal (e.g., the federal Competition Act) or provincial (e.g., consumer protection legislation) where a representation or advertising claim is either literally false or misleading (the latter which may take into consideration the “general impression” of an advertising claim). With respect to the literal meaning of an advertising claim, the Supreme Court has held: “The phrase ‘literal meaning of the terms used therein’ [for the purposes of the Quebec Consumer Protection Act] does not raise any interpretation problems. It simply means that every word used in a representation must be interpreted in its ordinary sense” (Richard v. Time Inc., 2012 SCC 8).
For more information, see: Canadian Misleading Advertising and Canadian Misleading Advertising FAQs. See also: Disclaimers and General Impression Test.
“Long rules” / “official contest rules” (Canadian contest/sweepstakes law).
Canadian promotional contests/sweepstakes commonly provide entrants with “long rules” or “official contest rules” when a contest is launched. It is important that long contest rules be drafted to protect the contest sponsor in the event issues arise. In this regard, it has been held that contests are contracts with an offer to enter the contest met with performance by contest entrants (i.e., entering and participating in the contest). As such, contest sponsors should ensure that precise long rules (i.e., “official contest rules”) are included that reflect the details of the contest, anticipate potential contingencies (e.g., technical problems) and set out the details of the contest as clearly as possible – for example, eligibility requirements, how to enter, prize descriptions, number and values, draws and award of prizes, odds of winning and indemnifying and releasing the contest sponsor and any co-sponsors or prize sponsors. Long rules are typically posted on a contest entry landing page via a link from the short rules / mini rules.
For more information about Canadian contest/sweepstakes law, see: Contests, Contests and CASL, Contest Law FAQs, Contests and Social Media and Contest Law Tips.
For information about the Canadian contest/sweepstakes precedents (template rules) and checklists that we offer for sale, see: Canadian Contest Forms/Precedents.
Lottery (Canadian contest/sweepstakes law).
In addition to the standalone promotional contest provision in the federal Competition Act (under section 74.06), criminal illegal lottery offences in Canada’s federal Criminal Code also apply to contests in Canada (sections 206 and 207). These provisions make it criminal offences to, among other things, run certain games of pure chance or mixed chance and skill where consideration (i.e., payment of money or provision of something else of value) is provided in order to enter and participate in the game. While the relevant provisions of the Code are complex and somewhat archaic, they generally codify, although inconsistently, the former three common law elements for illegal lotteries: (i) a prize, (ii) chance and (iii) consideration. In order to avoid these illegal lottery offences, Canadian contest sponsors typically remove the consideration element (by offering a no purchase required entry option) and some chance (by requiring a skill-testing question).
Re: Earth Future Lottery: “… Parliament does not happily abide gaming activities of any sort in Canada. The little it tolerates, it does so grudgingly. Section 206 [of the Criminal Code] is prohibitive in nature, not regulatory. The purpose of Parliament in enacting it was generally to outlaw gaming and lotteries, not just to ensure they would be run honestly. Subsection 206(1) creates a number of indictable offences proscribing a comprehensive range of gaming and gaming-related activities. Subsection 206(4) makes it a summary conviction offence to buy, take or receive a lot, ticket, other device mentioned in 206(1). Although s. 207 allows some tightly circumscribed exceptions to s. 206, it too contains a broad prohibition. Subsection 207(3) makes it an offence to do anything for the purpose of the conduct, management, operation of, or participation in a lottery scheme unless the doing of it is authorized by or pursuant to some provision of 207. Thus, even permitted lotteries must strictly adhere to the limits imposed by the terms and conditions of s. 207.”
For more information about Canadian contest/sweepstakes law, see: Contests, Contests and CASL, Contest Law FAQs, Contests and Social Media and Contest Law Tips.
For information about the Canadian contest/sweepstakes precedents (template rules) and checklists that we offer for sale, see: Canadian Contest Forms/Precedents.
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SERVICES AND CONTACT
We are a Toronto based Canadian competition and advertising law firm that helps clients in Toronto, across Canada and the United States 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.
Our 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. We 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 our services, see: services
To contact us about a potential legal matter, see: contact
For more information about our firm, visit our website: Competitionlawyer.ca
