Prohibited and controlled advertising in Canada

Prohibited and controlled advertising

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.

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).

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 cannabis, alcohol and gambling) may not be advertised in a way to appeal to those under the legal age and in some cases may be prohibited from being shown to young persons. At the time of writing, the federal government is contemplating prohibiting advertising certain food to children, but this is not yet in force.

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.

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).

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.

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.

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.

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.

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.

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.

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

No additional restrictions or requirements apply.

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.

In the territory of Nunavut, services and communications must be offered in the Inuktut language. This requirement 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 30 regarding advertising that offends standards of public decency.