On November 13, 2014, the Competition Bureau (the "Bureau") entered into a Consent Agreement (the "Agreement") with Bauer Hockey Corp. ("Bauer") requiring the company to stop making certain performance claims made in connection with Bauer's RE-AKT hockey helmet.

According to the Agreement, Bauer's advertisements for its RE-AKT helmet included words, images and videos that created the impression that the helmet provided protection against concussions caused by "rotational impacts" (the "Performance Claim"). Despite the fact that the helmet met Canadian Standards Association standperformards, the additional testing done by Bauer was not adequate and did not properly support the Performance Claim. Specifically, the Bureau's position was that this additional testing did not sufficiently establish that the helmet provided players enhanced protection from rotational forces or brain injuries such as concussions.

The Agreement requires Bauer to:

  1. Donate $50,000 worth of equipment to a charity that supports youth participation in sports (in lieu of paying an Administrative Monetary Penalty);
  2. Remove or modify the remaining performance claims from all RE-AKT marketing materials, including packaging and online advertising;
  3. Implement an enhanced corporate compliance program and take steps to ensure that retailers do not continue to make the Performance Claim; and
  4. Pay $40,000 toward the cost of the Bureau's investigation.

Conclusion

This case emphasizes the Bureau's focus on misleading advertising generally and its willingness to challenge marketing claims that it believes are not properly supported by adequate testing. This is especially so for health and safety related claims. While it is unclear what caused the Bureau to investigate the Performance Claims, it is not a stretch to suggest that the concerns may have been raised by a competing helmet manufacturer.

The two key takeaways for businesses are:

  1. companies seeking to make new or innovative performance claims mist ensure that sufficient testing is done prior to making the claims, in particular where those claims are beyond existing industry testing standards; and
  2. while the Bureau cannot monitor all performance claims in the marketplace, competitors can and are more than willing to make strategic complaints to the Bureau.

For a copy of the Bureau's press release, please click here.