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Legislation and regulation

Legal framework

What are the principal statutes regulating advertising generally?

The Competition Act (the Act) is the primary federal statute in Canada that prohibits false or misleading advertising or deceptive marketing practices. The Act prohibits making representations to the public that are false or misleading in a material respect. Such representations are reviewable under civil provisions and prohibited under criminal provisions of the Act. These provisions are identical except that the criminal offence requires a ‘knowing’ or ‘reckless’ mental state. The Competition Bureau is the regulator responsible for enforcing the Act, and can elect whether to pursue either the criminal or civil track when enforcing misleading advertising compliance. As a matter of practice, the Bureau typically only elects the criminal track for egregious cases.

The Act includes additional prohibitions that apply to specific types of advertising issues, such as pricing claims, performance claims, promotional contests, testimonials, bait-and-switch selling and sale above an advertised price. The Act also requires that all statements, warranties and guarantees be supported by ‘adequate and proper’ testing. This puts the onus on the advertiser to substantiate any claim before it is made to the public.

Additionally, consumer protection legislation governs advertising at the level of the provinces and territories in Canada. These statutes typically include prohibitions similar to the Act against making deceptive representations, as well as other provisions applicable to marketing practices.

Private sector privacy laws, including the Personal Information Protection and Electronic Documents Act (PIPEDA) and substantially similar provincial legislation, govern the collection, use and disclosure of information about an identifiable individual. This regime is relevant both to online behavioural advertising and also to day-to-day consumer marketing behaviour. Canada’s Anti-Spam Legislation (CASL) governs the sending of commercial electronic messages, which includes emails, texts or SMS, and certain social media interactions.

See question 5 for a discussion of Ad Standards.

Regulators

Which bodies are primarily responsible for issuing advertising regulations and enforcing rules on advertising? How is the issue of concurrent jurisdiction among regulators with responsibility for advertising handled?

The Competition Bureau is the agency responsible for enforcing the Competition Act, as well as several other consumer packaging and labelling statutes.

The Competition Bureau has jurisdiction over advertising in all sectors, although often the enforcement of advertising regulated products is led by sector-specific regulators. For example, Health Canada has jurisdiction over the advertising of food, drugs (prescription and non-prescription), natural health products, cosmetics, medical devices and cannabis. In the case of food, Health Canada’s enforcement branch is the Canadian Food Inspection Agency. Various government organisations and agencies regulate other special product categories at the provincial level, including alcohol, automotive and electrical products.

PIPEDA is enforced by the Office of the Privacy Commissioner (OPC). CASL is enforced by the Canadian Radio-television and Telecommunications Commission (CRTC).

Regulators’ powers

What powers do the regulators have?

Regulators receive their authority through governing legislation, including investigative and enforcement powers. Legislative penalties for advertising-related offences and reviewable practices include court orders, fines and imprisonment. The maximum penalty for a criminal offence under the Act is 14 years’ imprisonment plus a fine at the court’s discretion. For reviewable practices under the Act’s civil track, a court may impose one or more of the following orders:

  • to not engage in the impugned conduct;
  • to publish a corrective notice with respect to the conduct;
  • to pay an administrative monetary penalty (AMP); or
  • to pay restitution to affected consumers.

The maximum civil AMP that can be imposed against a corporation under the Act is C$15 million (C$1 million for an individual).

Other advertising statutes provide for similar criminal or civil (or both) penalties, but typically the penalties are not as high as those under the Competition Act. For example, the maximum penalties for food-related offences under the Food and Drugs Act are C$250,000 and three years’ imprisonment.

Regulators’ priorities

What are the current major concerns of regulators?

Pricing representations, including drip pricing, anchor pricing and substantiation of bargain prices, continue to be a major area of enforcement federally by the Competition Bureau. The Bureau currently focuses the bulk of its enforcement on the digital economy and representations made online.

The CRTC has recently brought enforcement actions concerning adequate consent to send commercial electronic messages, and properly functioning methods for opting-out of messages in a CASL-compliant manner.

Private-sector privacy regulators have focused recent advertising compliance on online behavioural advertising, reflected in the Digital Advertising Alliance of Canada’s establishment of the Canadian Self-Regulatory Principles for Online Behavioural Advertising. The OPC has stated its intention to begin more proactive enforcement of PIPEDA more generally, rather than only responding to complaints.

Industry codes

Give brief details of any issued industry codes of practice. What are the consequences for non-compliance?

Ad Standards is Canada’s national body for self-regulation of the advertising industry. Ad Standards administers the Canadian Code of Advertising Standards (the Code), which sets out the criteria for acceptable advertising in all media. The Code defines advertising as all forms of messages to Canadians designed to influence choice, opinion or behaviour, and it applies to all such advertising except political and election advertising, foreign media and advertisers and product packaging, wrappers and labels.

The Code covers the following types of issues:

  • accuracy and clarity;
  • disguised advertising techniques;
  • price claims;
  • bait-and-switch;
  • guarantees;
  • comparative advertising;
  • testimonials;
  • professional or scientific claims;
  • imitation;
  • safety;
  • superstition and fears;
  • advertising to children;
  • advertising to minors; and
  • unacceptable depictions and portrayals.

Non-compliance with the Code can result in complaints to Ad Standards from consumers, special interest groups or competitors. When a consumer files a complaint, the advertiser may have the opportunity to respond to the consumer’s complaint directly, depending on the basis of the complaint. If not resolved, the complaint is adjudicated by the Standards Council. If the Council upholds a consumer complaint, the advertiser is asked to amend or withdraw the advertisement. Competitor advertiser disputes are heard before an advertising dispute panel, but the results of these challenges remain confidential unless the challenged advertiser fails to comply with the panel’s decision. Where an advertiser fails to comply with a ruling from a consumer or competitor complaint, Ad Standards may publish details of the non-compliance, advise the exhibiting media and forward the matter to the Competition Bureau.

The Canadian Marketing Association (CMA) is an industry association representing Canada’s leading business sectors and all marketing disciplines, channels and technologies. Many leading companies operating in Canada are CMA members; membership requires compliance with the CMA Code of Ethics and Standards of Practice. The CMA Code has very similar requirements to the Code. Failure to comply with the CMA Code can result in expulsion from the CMA and a public announcement of such expulsion.

Authorisation

Must advertisers register or obtain a licence?

In general, advertisers are not required to register or obtain a licence; however, certain types of advertising and consumer business practices are subject to licensing. For example, unsolicited telemarketing is regulated both federally and provincially, and may require licensing or registration, or both, with the federal ‘Do Not Call List’. Additionally, direct or door-to-door sales are subject to regulation in some provinces and territories, requiring licensing in some jurisdictions.

Clearance

May advertisers seek advisory opinions from the regulator? Must certain advertising receive clearance before publication or broadcast?

The Commissioner of Competition has the discretion to provide a binding written opinion on how the Competition Act would apply to a proposed practice. This service is provided upon request and requires the payment of a fee. Canadian governmental regulators have largely delegated pre-approval of advertising to industry self-regulatory bodies.

Ad Standards and other authorised pre-clearance service providers offer a fee-based clearance service for advertisements of all media in the following sectors: alcoholic beverages, children’s advertising, consumer drugs and natural health products, cosmetics and food and non-alcoholic beverages. This clearance confirms compliance with applicable legislative and regulatory requirements. As a practical matter, most television broadcasters will not accept advertising in many of these regulated categories without pre-clearance. Similarly, most major broadcasters also require approval from Telecaster services of thinktv before airing advertising in any product category.

Other organisations also offer sector-specific advertising pre-clearance. For example, the Pharmaceutical Advertising Advisory Board offers a pre-clearance service for advertising directed to healthcare professionals that is recognised by Health Canada.

Private enforcement (litigation and administrative procedures)

Challenging competitors advertising

What avenues are available for competitors to challenge advertising? What are the advantages and disadvantages of the different avenues for challenging competitors’ advertising?

Competitors may challenge advertising before Ad Standards or before the courts. Ad Standards administers the Advertising Dispute Procedure, which is a confidential dispute-resolution forum. If the parties comply with the Procedure, then there is no publication of the dispute or Ad Standards’ decision. The only remedies available to a challenger are modification or withdrawal of the advertising. The Procedure contemplates relatively swift resolution of complaints, often within weeks of submission. It also tends to be less costly than a court proceeding.

Alternatively, advertisers may challenge a competitor’s advertising before the courts. A private right of action is available under the Competition Act, through which some advertisers have been successful in obtaining an injunction against offending advertisements. Injunctions can be very difficult to secure, however. To be successful in a case heard on the merits, a challenger must prove they suffered damages attributable to the offending advertising. Court actions can be costly, and there are often schedule delays in securing court dates.

In addition, complaints may be made to the Competition Bureau or to a sector-specific regulator, where applicable.

Public challenges

How may members of the public or consumer associations challenge advertising? Who has standing to bring a civil action or start a regulatory proceeding? On what grounds?

Members of the public may challenge advertising to Ad Standards or before the courts. A consumer complaint to Ad Standards is accomplished through a simple letter or other communication that raises an issue of potential non-compliance with the Code.

In the case of a court proceeding, the same private right of action is available to consumers, which requires the consumer or consumers to prove damages attributable to the offending advertisement.

Burden of proof

Which party bears the burden of proof?

The party bearing the burden of proof varies, depending on the forum of the challenge and the remedy sought. In the case of a complaint to Ad Standards, the complainant must show a likely contravention of the Code. Once that threshold is met, the onus will fall on the advertiser to show that the advertising complies with the Code.

In the case of a court proceeding seeking an injunction to stop the publication of an allegedly false or misleading advertisement, the plaintiff must demonstrate that the balance of convenience lies in favour of granting the injunction. In a case on the merits, the plaintiff must prove the elements of the criminal standard of false or misleading advertising under the Act, and that the offending conduct caused the plaintiff actual loss or damages. The advertiser has the burden of proof to show that it has ‘adequate and proper’ support to substantiate any claim.

Remedies

What remedies may the courts or other adjudicators grant?

A court may grant an injunction or damages. The sole remedy available through a challenge to Ad Standards is the amendment or discontinuation of the advertising.

Length of proceedings

How long do proceedings normally take from start to conclusion?

A complaint to Ad Standards may resolve within one or two months. It may take several months to obtain a court date to hear an injunction, and it can take several years to complete an action for misleading or false advertising (or similar litigation).

Cost of proceedings

How much do such proceedings typically cost? Are costs and legal fees recoverable?

At Ad Standards, the fees to file a dispute and have an initial resolution meeting are currently C$8,000 to C$12,000, with an additional C$10,500 to C$15,750 to proceed to a hearing (plus applicable taxes). Members of Ad Standards pay the lower end of these ranges. These fees are not recoverable. Lawyers’ fees would be additional, where applicable. Many complaints are resolved between the parties following the initial resolution meeting, without the need to proceed to a full hearing.

If proceeding to court, the costs can be much more difficult to anticipate, but may reach C$250,000 or higher, depending on the remedy sought and the complexity of the case. In this case, certain costs and legal fees may be partially recoverable in part by the winner in some instances.

Appeals

What appeals are available from the decision of a court or other adjudicating body?

Decisions by Ad Standards’ dispute resolution panel can be appealed to a second panel. Since Ad Standards has no order-making power, where an advertiser fails to comply with a decision, Ad Standards may publicly disclose the results of the decision or may refer the matter to the Competition Bureau, or both. In the case of a court proceeding, it may be possible to appeal to a higher court.

Misleading advertising

Editorial and advertising

How is editorial content differentiated from advertising?

Where editorial content is influenced by an advertiser, it may be treated as advertising. Where applicable, this relationship likely needs to be disclosed to ensure that the advertising is not misleading. Examples of influence could include providing a free product for review or paying for a product to be included in editorial content. If the advertiser is responsible for the content itself, this would constitute advertising. The nature of the connection between the advertiser and the editorial content will inform the scope of disclosure required, as well as the format of the disclosure. If an advertiser does not have any connection to editorial content, then no disclosure would be required.

Advertising that requires substantiation

How does your law distinguish between ‘puffery’ and advertising claims that require support?

There are no legislative provisions that specifically address puffery or other instances where a claim would not need to be substantiated. In evaluating contested advertising, a regulator would determine whether a specific claim is being made, considering the literal meaning as well as the general impression that the advertising creates. Many claims that might be considered puffery in other jurisdictions may be interpreted more literally in Canada and require substantiation (eg, claims of ‘best’ or ‘favourite’). If it is capable of being substantiated, it likely must be substantiated under Canadian law.

Rules on misleading advertising

What are the general rules regarding misleading advertising? Must all material information be disclosed? Are disclaimers and footnotes permissible?

Paragraph 74.01(1)(a) of the Competition Act is the civil provision that prohibits those who promote the supply or use of a product or a business interest from making a materially false or misleading representation to the public. In evaluating the meaning of a claim, the court or regulator will consider the general impression, including both literal and implied meanings. Courts have held, in recent decisions, that consumers interpreting advertising are ‘credulous’ and ‘inexperienced’. Where necessary, claims must be supported by adequate and proper testing.

All material information should be provided in or with a main claim, and disclaimers can be used to provide additional information that is relevant to expand upon the claim. Disclaimers or footnotes may be used to clarify the main claim, but cannot be relied upon to correct what would otherwise be a false or misleading representation; information provided in the disclaimer is likely not sufficiently prominent to overcome the general impression created by a main claim.

Substantiating advertising claims

Must an advertiser have proof of the claims it makes in advertising before publishing? Are there recognised standards for the type of proof necessary to substantiate claims?

An advertiser must have adequate and proper testing that substantiates its advertising claims, and this testing must be conducted in advance of publishing the advertising. The standard for such testing will depend on the nature of the claim and the impression the advertising conveys. The following factors should be considered when determining if a test is sufficiently adequate and proper (see the Commissioner of Competition v Imperial Brush Co Ltd and Kel Kem Ltd (carrying on business as Imperial Manufacturing Group), 2008 CACT 2):

  • the content of the testing should reflect how a common person would understand the claim;
  • tests must reflect the risk or harm that the product is designed to prevent or assist in preventing;
  • tests must be done under controlled circumstances or in conditions that exclude external variables or take account in a measurable way of such variables;
  • tests should be conducted on more than one independent sample wherever possible (eg, destruction testing may be an exception);
  • results do not need to be certain but must be reasonable (given the nature of the harm at issue), and the testing must establish that the results are materially caused by the product itself; and
  • tests must be performed regardless of the size of the seller’s organisation or the anticipated volume of sales.

Recent case law has upheld that the substantiation must be secured prior to making a claim, even if subsequent testing proves the claim was true. Further, courts have held it is constitutional to place a reverse onus on an advertiser to show that its testing is adequate and proper.

Survey results

Are there specific requirements for advertising claims based on the results of surveys?

There are no legislative requirements specific to relying on survey results to substantiate a claim. The factors set out in question 18 are relevant to determine whether the survey is sufficiently adequate and proper to support the claim or claims being made. Survey data should be consistent with any applicable industry practice as well as market research standards. For example, such data should validly measure what will ultimately be claimed in the advertising (eg, consumer preference or the general impression an advertisement creates). Respondents should be asked neutral questions that do not lead them to a particular answer or force a choice where a consumer may have no preference. The survey methodology must also be reliable, such that the population surveyed reflects the population to whom the advertisement will be targeted. When designing a survey, consider the demographics, geography and currency of the data, and obtain a statistically significant sample.

Comparisons with competitors

What are the rules for comparisons with competitors? Is it permissible to identify a competitor by name?

Comparative advertising is permitted, provided that it is not false or misleading, does not infringe on third-party intellectual property rights and does not unfairly disparage the competitor or its products or services. Such comparisons must not be false or misleading (eg, any points of comparison should be consumer-relevant and consistent with the intended use of the compared products). Competitors may be identified by name, provided that the reference does not create confusion between the competitor and advertiser and their respective products or services. Using a third-party trademark such as a brand logo in advertising must be approached carefully, since it may constitute trademark infringement under Canada’s Trade-marks Act.

Test and study results

Do claims suggesting tests and studies prove a product’s superiority require higher or special degrees or types of proof?

There are no additional requirements applicable to the substantiation of superiority claims. Like all product claims, these require adequate and proper testing in advance of publishing the claim. Common challenges to substantiating superiority claims include having current testing, and where the testing does not support the actual claim in the advertising. A claim of market superiority will, of course, require testing against all potentially comparative products, which may expand the scope of testing required. From a practical perspective, superiority claims may be subject to an increased risk of competitor challenge.

Demonstrating performance

Are there special rules for advertising depicting or demonstrating product performance?

There are no special rules when depicting a product’s performance in advertising. Like all advertising, these demonstrations must comply with the general prohibition against making a false or misleading representation. Common challenges to ensuring that a product depiction is not misleading include recreating typical consumer use, limitations on advertisement time and depictions of competitor products.

Where a demonstration includes a competitor product, the demonstration should use the product in accordance with its instructions, and care should be taken not to denigrate the product beyond showing substantiated points of comparison (eg, throwing the product in the litter bin or otherwise implying it has no use).

Third-party endorsements

Are there special rules for endorsements or testimonials by third parties, including statements of opinions, belief, or experience?

The Competition Act requires that an advertiser obtain written consent before using a testimonial in advertising, or alternatively that the testimonial has been previously published. Additionally, testimonials and endorsements must comply with the general prohibition against making a false or misleading representation.

Common challenges to ensuring that testimonials are not misleading include ensuring that the endorsement is based on the endorser’s honest opinion, is based on actual use in accordance with the supplier’s instructions and that the testimonial remains accurate when used in advertising (particularly for ongoing campaigns). Where an endorser is remunerated for providing the testimonial or is affiliated with the advertising company (eg, employee, owner, etc), the general impression of the advertisement must communicate this relationship. Where the testimonial is published by the endorser or another party other than the brand, there is an increased risk that the general impression of the advertising may not convey its commercial nature.

Any use of a third-party certification mark should be consistent with that party’s intellectual property rights. Some certifications, claims and products are subject to regulated certification standards or accredited certification bodies, or both. Examples include food grade marks, organic certification and radio spectrum product certification.

Guarantees

Are there special rules for advertising guarantees?

The Competition Act specifically prohibits advertising a guarantee, warranty or other statement that is materially misleading or if there is no reasonable prospect that it will be carried out.

Provinces and territories have enacted legislation that require a seller of goods to provide a minimum standard of merchantability and fitness for purpose. Most consumer protection legislation prohibits or voids any terms of sale that purport to negate these implied warranties, and these statutes further expand these sale-of-goods warranties to the benefit of consumers. Some jurisdictions require certain disclosures be made in an additional express warranty provided in respect of a product or service.

Environmental impact

Are there special rules for claims about a product’s impact on the environment?

The general legislative framework regulating advertising applies to environmental claims. Additionally, the Competition Bureau has published enforcement guidelines to follow to ensure that an environmental claim is unlikely to raise such concerns. These guidelines are based on ISO 14021:2016, Environmental labels and declarations - Self-declared environmental claims (Type II environmental labelling).

In general, environmental claims should specifically state the supported environmental benefits claimed and not broadly imply an environmental benefit or that a product is environmentally benign. Special care should be made when substantiating claims that a product is ‘free’ from a specified substance or that a product is ‘sustainable’, and where there is any use of environmental symbols (such as the Mobius loop).

Free and special price claims

Are there special rules for describing something as free and for pricing or savings claims?

The general impression test will apply to ‘free’ claims, and accordingly, there should not be any required or implied fees associated with obtaining something that is advertised as free. Additionally, any bundled product should provide the promotional object at no additional cost with no cost recovery of the bonus item. In Quebec, the emphasis in an advertisement for a bundled product should not be placed on the premium item.

Bait-and-switch selling and sales above advertised prices are also specifically prohibited. There are also strict legal tests that must be met when making claims about a regular price or a bargain price. These tests apply to comparisons to a supplier’s own price or to comparisons made against prices generally in the market for the same (or similar) products or services. These tests primarily rely on either the volume of product or service the supplier has sold at the regular price or on the time during which the supplier offered the product or service at that regular price (either before or after the pricing representation). The time test also requires that the supplier offered the product or service in good faith, which is based on factors such as open availability, a regular price that is relevant to similar regular prices in the market and having sold volume at the regular price.

New and improved

Are there special rules for claiming a product is new or improved?

There are no specific legislative rules regarding ‘new’ or ‘improved’ claims. The general impression of the claim must not be false or misleading, and the advertiser must have substantiation on file to evidence the claim. For example, for an ‘improved’ claim, the advertiser must have evidence that the model was updated with additional features when compared with a previous version. The appropriate duration of time for a ‘new’ claim will depend on the type of product or service, but in general should not be longer than one year.

Claims of origin

Prohibited and controlled advertising

Prohibited products and services

What products and services may not be advertised?

Any product or service that may be legally sold may be advertised; however, the medium, content and audience of such advertisement may be restricted. Tobacco advertising is so heavily restricted as to be close to prohibited. See below for further details.

Prohibited advertising methods

Are certain advertising methods prohibited?

Email and text marketing is highly regulated in Canada. Commercial electronic messages that contain marketing and advertising content may not be sent without express opt-in consent, unless the message meets one of the limited statutory exceptions, such as a prescribed relationship between the sender and recipient that gives rise to consent being implied under the legislation.

The Code prohibits disguised advertising (eg, advertising that attempts to pass as editorial content). The Code also prohibits advertising that offends standards of public decency, both generally and through enumerated restrictions against discrimination, condoning or inciting violence, or bullying, demeaning, denigrating or disparaging any group of persons (and similar conduct).

Protection of minors

What are the rules for advertising as regards minors and their protection?

The Code prohibits advertising to children that ‘exploits their credulity, lack of experience or their sense of loyalty’ as well as ‘information or illustrations that might result in their physical, emotional or moral harm’. Additional rules apply specifically to broadcast advertising under the Broadcast Code for Advertising to Children.

In the Province of Quebec, advertising directed to children under 13 years of age is prohibited, subject to certain limited conditions.

Across the country, certain products (including alcohol and gambling) may not be advertised in a way to appeal to those under the legal age, regardless of jurisdiction. At the time of writing, the federal government is contemplating prohibiting advertising certain food to children, but this is not yet in force.

Credit and financial products

Are there special rules for advertising credit or financial products?

Any advertising promoting credit, financing or lease products must comply with provincial consumer protection legislation, which prescribes disclosure requirements, such as the annual percentage rate, applicable interest rates and cost of borrowing. These requirements vary by province. There are similar rules applicable to regulated financial institutions and entities, which are set out in the Bank Act and similar legislation.

Therapeutic goods and services

Are there special rules for claims made about therapeutic goods and services?

Health Canada has jurisdiction over drugs, natural health products and medical devices, and regulates advertising for such products under the Food and Drugs Act (FDA) and applicable regulations. The FDA prohibits advertising that is false, misleading or deceptive, or likely to give consumers a false impression about the character, value, quantity, composition, merit or safety of the drug or device.

Prescription drug advertising to the general public may only state the name, price and quantity of a drug, and may not state or imply its therapeutic benefit. The Pharmaceutical Advertising Advisory Board’s Code of Advertising Acceptance prescribes the rules for advertising to health professionals.

Advertising for natural health products is limited to the scope of the applicable product licence.

The advertising of therapeutic services is regulated at the provincial or territorial level, most often under codes of conduct imposed by the colleges of the healthcare professionals (such as physicians, nurses and the like).

Food and health

Are there special rules for claims about foodstuffs regarding health and nutrition, and weight control?

Claims about food are regulated under the FDA and its Food Regulations. General health claims may be permissible in certain situations, but drug-like claims are generally prohibited. Drug-like claims include treating, mitigating or preventing a disease, disorder or physical state, or correcting, restoring or modifying an organic function. Nutrient function claims are also specially regulated. Only foods specially regulated as meal replacements, foods sold by weight reduction clinics or foods for very low energy diets may be advertised for use in weight loss. Weight maintenance representations may be permissible, provided that the advertising does not give the general impression of a weight loss claim.

Alcohol

What are the rules for advertising alcoholic beverages?

Alcoholic beverage advertising is regulated at the provincial and federal level. While the specific rules vary by province and by media, in general, advertising must not appeal to those under the legal drinking age, appear to condone irresponsible or excessive consumption, associate consumption with an activity that requires skill or suggest that alcohol is necessary or important to the enjoyment of an activity, to one’s success or to attain social standing. Alcoholic beverage advertising is subject to pre-clearance in the province of Quebec by the provincial liquor, racing and gaming authority.

Tobacco

What are the rules for advertising tobacco products?

Advertising for tobacco products is restricted under the Tobacco Act. Advertising tobacco products and ‘tobacco product-related brand elements’ is prohibited, except in information or brand preference advertising in publications mailed to an adult, identified by name, or on signs in a location where ‘young persons’ are not permitted by law. Sponsorships and any form of ‘lifestyle’ advertising are prohibited.

Gambling

Are there special rules for advertising gambling?

Many forms of gaming, gambling and betting are prohibited entirely under the Criminal Code, which also prohibits advertising and promoting such illegal conduct. Ontario’s Consumer Protection Act includes a further prohibition against advertising an internet gaming site that is operated contrary to the Criminal Code.

Provincial governments have the authority to establish provincial lottery corporations, through which they may operate legal gaming (whether online, at casinos or through lottery tickets or similar devices). Advertising by such authorities must promote responsible gaming.

Lotteries

What are the rules for advertising lotteries?

The provincial lottery corporations and gaming authorities (and, in some cases, civic or local governments) may license lotteries and related activities (bingos, raffles or other similar games of chance). Most commonly, such licences are granted to charitable organisations for fundraising purposes. Only licensed lotteries may be advertised. Such advertising must meet any conditions of the licence under which it is authorised, and otherwise be consistent with the goal of promoting responsible gaming.

Promotional contests

What are the requirements for advertising and offering promotional contests?

The Act and the Quebec Rules respecting Publicity Contests govern what must be disclosed in promotional contest advertising. The Competition Bureau’s Promotional Contests guidance is that the rules should state:

  • the number and value of prizes;
  • any regional allocation of prizes;
  • the skill testing question requirement;
  • details as to the chances of winning (a chart may simplify explanation of the chances);
  • the contest closing date; and
  • any other fact known to the advertiser that materially affects the chances of winning.

To this list, we recommend adding the fact that no purchase is necessary to enter or to win, and where to find the official contest rules, which may be through a web address.

Indirect marketing

Are there any restrictions on indirect marketing, such as commercial sponsorship of programmes and product placement?

No additional restrictions or requirements apply.

Other advertising rules

Briefly give details of any other notable special advertising regimes.

Political advertising is excluded from the scope of the Code.

French is the official language of business and commerce in the province of Quebec. The Charter of the French Language requires that all advertising be either predominantly in French, or have no other language appear more prominently than French, with limited exceptions. Quebec’s consumer protection legislation also contains many provisions unique to that province, including total price advertising, restrictions on free trials, rules for advertising of premiums and other material conditions.

Effective from July 2017, Nunavut law came into force, requiring that services and communications be offered in the Inuktut language. This applies to signs and to advertising.

New Brunswick is Canada’s only bilingual province. Advertisements for public services, or in government run facilities, must generally be bilingual.

See question 29 regarding advertising that offends standards of public decency.

Social media

Regulation

Are there any rules particular to your jurisdiction pertaining to the use of social media for advertising?

There are no legislative provisions that specifically regulate the use of social media for advertising.

Common legal challenges to social media advertising include ensuring that influencer content is properly disclosed as commercial, avoiding infringement of third-party intellectual property, and restricting product claims in regulated product categories to those that are approved for use in the Canadian market.

Have there been notable instances of advertisers being criticised for their use of social media?

In 2015, a national telecommunications provider entered into a consent agreement with the Competition Bureau after its employees posted positive online reviews regarding the provider’s apps but did not disclose their employment relationship in the reviews. Under the terms of the consent agreement, the advertiser paid an administrative monetary penalty of C$1.25 million, agreed to enhance and maintain its corporate compliance programme to address this issue and sponsored and hosted a workshop to promote, discuss and enhance Canadians’ trust in the digital economy.

Are there regulations governing privacy concerns when using social media?

General privacy legislation applies to the use of social media, including the requirements to obtain valid consent for the collection, use and disclosure of personal information, and to disclose the purposes for which personal information is being collected, used or disclosed.

Additionally, regulatory bodies have published guidelines and set out best practices for the use of online behavioural advertising, which applies to its application on social media channels. If online behavioural advertising techniques can be used to identify an individual (eg, combining anonymous data that could identify an individual), then private sector privacy legislative requirements will apply. The AdChoices programme developed by the Digital Advertising Alliance of Canada sets out the Canadian self-regulatory principles for online behavioural advertising, namely: education, notice and transparency, consumer control, data security, sensitive data (including children’s information) and accountability.

Update and trends

Update and trends

Updates and trends

A single, consistent trend in compliance and enforcement in advertising can be summarised as transparency. This applies to all aspects of advertising law in Canada, from the privacy concerns around online behavioural advertising, to the disclosure obligations expected of reviewers and influencers. It is expected when disclosing prices, as well as when identifying the individual seeking consent to send an email. Across the spectrum, regulators and consumers are both expecting transparency. Advertisers are increasingly embracing transparency as a means by which to build consumer trust and authenticity in advertising. As transparency becomes the norm, expect the goal posts to shift in terms of what is reasonable, what is industry practice and when a regulator may be ready to make an example of an outlier.