WATCH OUT IF YOU HAVE AN ENGLISH-ONLY SIGN IN QUÉBEC
As mentioned in our October 2011 issue of the BLG Buzz..., the Office québécois de la langue française, Québec's French language authorities, launched a campaign aimed to inform businesses of its policy on the use of trade-marks on signs last Fall. According to the Office, businesses can use Englishonly trade-marks (or trade-marks in a language other than French) to identify themselves, notably on their signs, only to the extent that the trade-marks are registered in Canada and that these are accompanied by a French generic term that describes the businesses' activities, products and/or services. According to recent reports in the media, the Office has begun enforcing its policy and sent a number of notices to businesses requiring that they modify their signs. To date, it does not appear that the Office has officially confirmed that it has begun enforcing its policy. A copy of the Office's policy is available here.
PROPOSED CHANGES TO CANADA'S COPYRIGHT ACT HAVE PASSED
In June, Bill C-11, An Act to amend the Copyright Act, was passed. A "coming into force" date has not yet been set. Among other things, Bill C-11 expands the fair dealing provision, gives photographers the same rights as other creators, and provides performers with additional rights in respect of their performances. A copy of Bill C-11 is available here.
Also, on July 12, 2012, the Supreme Court of Canada released five decisions relating to copyright tariffs. A copy of our bulletin about these decisions is available here.
CANADA NOW TUNES IN ON SOUND MARK REGISTRATIONS
The Canadian Intellectual Property Office ("CIPO") has begun accepting trade-mark applications for sound marks. The application for registration should: (a) state that the application is for the registration of a sound mark, (b) contain a drawing that graphically represents the sounds, (c) contain a description of the sound, and (d) contain an electronic recording of the sound. CIPO is only accepting sound recordings in MP3 or WAVE format, limited to 5 MBs in size, and recorded on a CD or DVD.
POLICY POSITION ON ONLINE BEHAVIOURAL ADVERTISING
In June, the Office of the Privacy Commissioner of Canada ("OPC") issued a detailed policy position on online behavioural advertising ("OBA"). The OPC's guidelines apply to the tracking and targeting by organizations of individuals' web activities in order to tailor advertisements to those individuals' inferred interests. These guidelines are targeted to the advertising industry, browser developers, web site operators and those benefiting from OBA and aim to ensure individuals' privacy. The OPC takes the position that information collected for the purposes of OBA should generally be considered personal information, and thus consent be obtained from the individuals concerned. According to the OPC, opt-out consent to OBA is acceptable subject to certain conditions and restrictions. Notably, the OPC advises against the use of OBA on web sites directed at children. For more information on the Policy, see our bulletin, which is available here. A copy of the Policy is available here.
IS YOUR ONLINE ACTIVITY A "COMMERCIAL ACTIVITY"?
In general, Canada's Personal Information Protection and Electronic Documents Act ("PIPEDA") applies to every organization that collects, uses or discloses personal information in the course of its commercial activities. The Office of the Privacy Commissioner of Canada ("OPC") recently released an interpretation document on the meaning of "commercial activity", which is available here.
The interpretation document provides some marketing-specific examples. For example, the OPC considers the collection and online posting of individuals' personal information to serve as advertisements for a person's business to be performed in the course of a commercial activity and thus subject to PIPEDA. Another example is a social networking site collecting, using and disclosing personal information for the purpose of enhancing the users' experience, thus indirectly contributing to the success of the site as a commercial enterprise.
UPDATE ON CANADA'S ANTI-SPAM LEGISLATION
Canada's anti-spam legislation ("CASL") will likely not come into force until 2013. Once revised draft regulations are released by Industry Canada, a consultation period is expected to follow. A grace period is also anticipated before CASL comes into force.
Not only do domestic organizations need to be aware of CASL, but foreign organizations as well since CASL applies to any person who sends commercial electronic messages from or to Canada. The CASL regime is different from the United States' The CANSPAM Act of 2003 ("CAN-SPAM") regime. One main difference is that CASL operates in an opt-in fashion, while CAN-SPAM operates in an opt-out fashion. For information on how to prepare for CASL, please click here.
CONSUMERS WILL NEED TO OPT-IN TO RECEIVE PRODUCTS AND SERVICES FROM FINANCIAL INSTITUTIONS
The Negative Option Billing Regulations under Canada's Bank Act, which are scheduled to come into force on August 1, 2012, will require federallyregulated financial institutions ("FRFIs") as well as the affiliates they control or agents of such FRFIs or affiliates to offer new retail products and services on an opt-in basis only. Customers must first be provided with certain prescribed information in a manner that is clear, simple, and not misleading, and thereafter must provide their express consent before the product or service is provided. The simple use of a product or service does not constitute express consent. These regulations prescribe a 30-day written notice requirement for any changes in the terms and conditions that govern the optional product or service and mandate certain disclosure in connection with promotional, preferential, introductory or special offers. Other than as provided in connection with a credit agreement, FRFIs will be required to specify certain cancellation rights that customers have in connection with ongoing products and services in any disclosure statement made in relation to such products and services and, once a notice of cancellation is provided, return to the customer a portion of any paid for products and services that were unused based on the formula set out in the regulations.
IS MISLEADING ADVERTISING IN CANADA NOW BASED ON THE CONSUMER WITH BELOW AVERAGE INTELLIGENCE?
In the decision of Richard v. Time Inc., the Supreme Court of Canada lowered the bar in assessing whether an advertisement was misleading. The assessment is not based on the perspective of a consumer "with an average level of intelligence, scepticism and curiosity". Instead, consider the average consumer who is "credulous and inexperienced and takes no more than ordinary care" when observing the general impression of the advertisement. For a summary of this case, please click here.
CANADIAN FOOD SAFETY BILL
In June, Bill S-11 was introduced to modernize the regulatory system for food commodities. It contemplates a new food legislation (Safe Food for Canadians Act ("SFCA")), as well as consolidating certain legislation with the SFCA (such as the Canada Agricultural Products Act) and making changes to a number of legislation (such as the Consumer Packaging and Labelling Act and the Customs Act ). Among other things, the SFCA prohibits a person from packaging, labelling or advertising a food commodity in a false, misleading or deceptive manner regarding its character, quality, value, quantity, composition, merit, safety or origin or the method of its manufacture or preparation. A violation of this prohibition could result in a fine of up to $5 million in addition to imprisonment.
A copy of Bill S-11 is available here.
CONSULTATION ON GUIDELINES FOR HIGHLIGHTED INGREDIENTS AND FLAVOURS
The Canadian Food Inspection Agency is seeking comments until August 23, 2012 on its Guidelines for Highlighted Ingredients and Flavours. The goal is to clarify existing requirements and policies on the use of highlighted ingredient claims (e.g., "made with fruit") or flavour claims (e.g., "cherry flavoured ice cream") on a label or advertisement to promote truthful and not misleading labelling. Areas of concern discussed in the Guidelines include substitution, overemphasis and misrepresentation of flavours. A copy of the Guidelines is available here.
HEALTH CANADA'S POSITION ON SODIUM, UNSATURATED FAT, BLOOD CHOLESTEROL LOWERING, DIETARY FIBRE AND PREBIOTICS
Health Canada has released a number of documents this year, including the following:
- Guidance for the Food Industry on Reducing Sodium in Processed Foods. The Guidance document lists acceptable salt-related nutrient content claims, discusses comparative claims related to sodium, and refers to some health claims related to sodium. A copy of the Guidance document is available here.
- Summary of Health Canada's Assessment of a Health Claim about the Replacement of Saturated Fat with Mono- and Polyunsaturated Fat and Blood Cholesterol Lowering. The Summary includes wording and conditions for therapeutic health claims about unsaturated fat and blood cholesterol lowering. A copy of the Summary is available here.
- Policy for Labelling and Advertising of Dietary Fibre-Containing Food Products. A copy of the Policy is available here.
- A draft guidance on the use of the term "prebiotic(s)" on food labels and in advertising for consultation. The consultation period has ended. Among other things, the guidance document sets out 3 criteria that must be met for Health Canada to consider the term "prebiotic(s)" acceptable for a food product. They are: (1) a specific and measurable health benefit is demonstrated in humans, (2) a change in gut bacterial composition or activities is demonstrated in humans, and (3) the human health benefit demonstrated for criterion 1 is attributed to the change in gut bacterial composition or activities demonstrated for criterion 2. Human or animal studies can be used to support a biologically plausible mechanism of action.
REMINDER CORNER: PACKAGING AND LABELLING
This year, the Canadian Food Inspection Agency ("CFIA") has issued a number of reminders to industry. By August 4, 2012, enhanced food allergen labelling will come into force. Also, industry is reminded that the use of trade-marks in labelling and advertising of foods sold in Canada still need to comply with applicable food legislation. A copy of CFIA's food allergen labelling reminder is available here, and trade-marks reminder is available here. Also, a copy of our bulletin on packaging and labelling laws in Canada is available here.
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