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Marketing to Canadians – A plethora of regulatory considerations

Finance-Accounting-Policy-Pro-print-software-manual-180pxBusinesses marketing to Canadians may be surprised at the number and scope of laws that may impact marketing efforts. Previous Releases provided updated coverage of some of these laws, including privacy and anti-spam laws. This Release updates Policy OP 6.12 – Do Not Call Registry, which includes coverage of the Unsolicited Telecommunications Rules that govern telemarketing activities. Listed below are 7 of the many considerations that businesses marketing to Canadians must consider. Some will be explored in detail in upcoming Releases:

  1. Deceptive marketing and misleading advertisements: The federal Competition Act includes significant civil and criminal penalties for various offences, including, making representations that:
    • Are false or misleading
    • Not based on adequate or proper tests
    • Contain false testimonies
    • Contain misstatements as to price – for example, there are tests to be met before advertising and promotion can validly include a price claim like “Regular Price – $1,000; Sale Price – $400”.
    • Contain misleading warranty or repair promises or information

    In addition to the Competition Act businesses may have to contend with other federal and provincial consumer protection laws.

  2. Intellectual property: Canada’s main intellectual property laws are: (i) the Trade-marks Act and (ii) the Copyright Act. Copyright issues can arise in various marketing contexts, for example, when using clips of an artist’s song in an advertisement. The Canadian Intellectual Property Office handles trademark (and patents, copyright and industrial design) registrations. Additionally, someone may still enforce certain trademark rights associated with unregistered trademarks.
  3. Online activities:
    • The Competition Act, through recent amendments to Canada’s anti-spam law (commonly known as “CASL”), was recently updated to specifically prohibit false or misleading representations in electronic communications (for example, in texts and emails).
    • The Office of the Privacy Commission of Canada has published guidance for businesses that wish to track online activities for direct marketing purposes. See “Guidelines on Privacy and Online Behavioural Advertising”, found here: www.priv.gc.ca/information/guide/2011/gl_ba_1112_e.pdf.
    • Online activities may be a minefield for the unsuspecting. See the November 2015 post in our Inside Internal Control Blog: “What others say may be held against you” here. The post explains the potential exposure to defamation lawsuits from user comments or postings to an organization’s website and social media platforms.
  4. Labels and packages: A number of provincial and federal acts regulate labelling and packaging, for example:
    • The federal Food and Drugs Act
    • Canada Consumer Product Safety Act
    • The Organic Agricultural Products Act (Manitoba)
  5. Contests and Promotions: Contests and promotions may be regulated by a number of laws, including:
    • Provincial securities acts (Canada is the only G-20 country, and one of a handful of countries worldwide, without national securities legislation.)
    • The federal Competition Act
    • The federal Criminal Code
  6. Children: There is no federal law specifically designed to regulate advertising and promotion aimed at children. Quebec is the only province to specifically regulate advertising to children, in its Consumer Protection Act. Some industry agencies or self-regulatory bodies address marketing and advertising to children. For example, Advertising Standards Canada addresses this issue in The Canadian Code of Advertising Standards, and The Broadcast Code for Advertising to Children.
  7. Language:
    • As Canada has two official languages – English and French – the federal Consumer Packaging and Labelling Act requires that certain information on packages be included in both languages.
    • Quebec has additional language requirements. For example, its Charter of the French Language requires that for the most part, catalogues, brochures and similar marketing publications are in French. Businesses operating in Quebec must also have a French name.

Apolone Gentles, JD, CPA,CGA, FCCA, Bsc (Hons)

Apolone Gentles is a CPA,CGA and Ontario lawyer and editor with over 20 years of business experience. She has held senior leadership roles in non-profit organizations, leading finance, human resources, information technology and facilities teams. She has also held senior roles in audit and assurance services at a “Big Four” audit firm. Apolone has also lectured in Auditing, Economics and Business at post-secondary schools.

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