This summer, the Competition Bureau (the "Bureau")
released The Deceptive Marketing Practices Digest (the
"Digest"). The Digest, the first of what is intended to
be a series of periodic communications, is in furtherance of the
Bureau's mandate of transparency. We can expect to glean from
its pages the Bureau's insights and thoughts on various topical
issues.
The first issue of the Digest focusses on online advertising and
the digital economy. Trends identified by the Bureau include online
behavioural advertising and geolocation. Three discussed trends
previously identified as areas of enforcement interest for the
Bureau include native advertising (where the lines between
advertising and editorial or news are blurred), drip pricing (the
advertising of a partial price without adequate disclosure of the
full cost to the consumer), and the (in)adequate disclosure of
material terms and conditions of an offer in the online and mobile
contexts.
Of note, the Bureau attempts to "demystify disclaimers"
and provides important reminders about their use from the
Bureau's perspective, including the following:
- The general impression test takes into account the "sum of the parts" in advertising and must be factored into any consideration of disclaimers.
- Disclaimers may expand on or clarify possible ambiguities, particularly where space limitations or clutter are a concern.
- Disclaimers are more likely to result in misleading advertising when used to restrict, contradict or negate the main message, or to try to alter the general impression of the ad.
- Disclaimers should not be worded so as to be confusing or difficult to understand, or be hard to read due to font or presentation.
- Disclaimers cannot correct an otherwise false or misleading representation.
- In the digital space, be mindful of the presentation of disclaimers on different platforms and devices.
The Digest concludes with a discussion of astroturfing (the
practice of fake online reviews) and international enforcement
efforts in this area. The Bureau previously put out a call last
year for consumers and industry to report suspected astroturfing,
and while we understand that the Bureau is looking into the issue,
we have not yet seen enforcement action taken publicly.
We expect that attentive readers of the Digest, in this and future
editions, will be able to take from it a sense of enforcement
priorities for the Bureau in the deceptive marketing space, and
insights as to how it would apply the Competition Act and
other laws it enforces.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.