Canada: More Lessons From ASC’s School Of Hard Knocks

Last Updated: December 5 2012
Article by Marketing, Advertising & Regulatory Group

As our dedicated readers know, each year we review the consumer complaint cases that come before Advertising Standard Canada ("ASC") and its Consumer Response Council ("Council") under the Canadian Code of Advertising Standards ("Code") and pull a smattering out to show you the range of issues ASC adjudicates.

Over these past four quarters, disclaimer deficiencies continue to be a common basis for ads being pulled. Too small, too brief, too contradictory. Is that too bad for the consumer or the advertiser? More and more, it's the latter. ( See our article on this in last year's Update, when it was an even bigger issue.) So, contrary to the belief that no one cares about all that legal mice type except lawyers, it seems that ain't so.

Telecoms had a pretty tough year, getting hammered on numerous ads. Consumers don't seem very willing to let Telcos' omissions slide anymore. Other major advertisers like Oreck Canada, Samsung, Wind Mobile, Sears Canada and others have been getting it wrong too, despite their corporate mass and muscle. You remember that movie where Peter Finch says he's mad as hell and he isn't going to take it anymore? It's sort of like that. With consumer complaints increasing, it seems they're just not in the mood to be ticked off.

Many advertisers, of course, either pull their ads or appropriately amend them before they go before Council, thus avoiding being identified by name in ASC's Ad Complaints Report.

Such as it is, however, let's take a look at some of the year's trials and tribulations – hopefully to see, and be reminded of, what we should watch out for ourselves. ("We" being you, of course.)


a. AWOL Qualifications

Looking to the skies, two separate airline ads got dinged when consumers searched for the tempting airfares advertised but couldn't find the flights. Running out of the cheap seats is common, of course, but the airlines got caught here as one of the ads failed to say "from" before its price or to indicate that seats were limited, and the other forgot to say that not all flights were available at the advertised price on all days during the promotional period.

b. Disclaimers Too Darn Small

When Council can't read a super even after numerous viewings, it's probably safe to assume you're going down. Such was the case with Comcast's TV ad promoting home phone plans. While the super was present and accounted for, it was found to be too small and not displayed long enough on screen to be clearly legible, violating Clause 1(d) of the Code.

From phone plans to investment opportunities, we knew it had to happen sooner or later. Indeed, this spring, someone final emerged who actually wanted to read (or at least to challenge?) the lengthy disclaimer in a TV ad for a financial investment company. You know – the kind that Evelyn Wood herself would have difficulty finishing before the ad was over. Unbearably thwarted, our consumer came forward to complain that the cautionary super was too small and not on-screen long enough to be read. Despite the advertiser's explaination that the very detailed disclaimer was mandated by provincial legislation, Council nonetheless found that it was not presented in a clearly visible manner. The advertiser permanently withdrew the ad prior to the Council hearing. If he were so inclined, the complainant could probably take down another truckload of ads, but we shall have to see whether the Financial Disclaimer Vigilante will strike again.

c. Just Misleading

Cosmetic surgery to enhance women's "most private places"...

"a problem that most women have but are too embarrassed to talk about"? Well, this is what the Toronto Cosmetic Clinic claimed in a radio commercial aired in Ontario. One listener in particular felt that the ad was misleading (you mean most women don't secretly dream about surgically enhancing their private parts?) and that it was an unhealthy message for young women. Council agreed citing an infraction of Clause 1(a) (Accuracy & Clarity) and Clause 11 (Safety) of the Code.


Seems like an increasing number of consumers are paying close attention to telecom ads these days, given the complaints ASC received on phone and Internet ads. As they say, though, if you can't bark with the big dogs, get off the porch. Some consumers are really taking that to heart! the consumer who felt that a telecom advertiser incorrectly referred to geography, rather than to population, when claiming that its network covered a certain percentage of Canada. Even the advertiser agreed with the complainant on this one;

...then there was the ad that offered savings of several hundred dollars on Internet service, nationally. A small symbol, which ASC indicated was virtually impossible to see, directed the consumer to a disclaimer on the reverse side which stated that the savings were based on subscribing to a specific plan. ASC found the ad contravened Clauses 1(a), (c) and (d) of the Code, being misleading, omitting relevant details and having a contradictory disclaimer;

...if that's not enough, an ad featuring a cell phone "from $0 with a 3 year term" was found misleading when none of the featured phones could be purchased at the advertised rate. The advertiser replaced the ad in question before Council met to adjudicate the complaint;

...finally, another telecom ad featured special rates for a home phone plan. One complainant felt misled because the ad did not state that the service was a Voice Over Internet Protocol (VOIP) requiring an Internet connection OR that the advertised rates were promotional and would not continue after the promotion ended. Both the advertiser and Council agreed with the complainant. The advertiser again withdrew the ad before Council met to adjudicate the complaint.


In Atlantic Canada, a not-for-profit's newspaper ad was found misleading. It was an advocacy ad regarding government program expenditures that contained a chart comparing expenditures by various provinces. The complainant believed the chart exaggerated the difference amongst provincial expenditure levels. Council agreed. POINT: Not-for profit's aren't exempt from the rules.


A picture is worth a thousand words! Okay, maybe not a thousand in this case, but certainly a decision by Council that the picture contained an inaccurate claim. A restaurant in British Columbia advertised a meal on their daily deals website that the complainant alleged exaggerated the amount of meat included in the offer. After acknowledging that the amount of meat was incorrectly described (albeit correctly depicted in the photo), the advertiser amended the text to clarify the offer. POINT: Don't fool around with hungry restaurant-goers; they are grumpy and will get you back.


In its flyer, an Alberta automotive dealer apparently gave the impression that its "Auto Stimulus Program" was endorsed by the Canadian Government. Next to the maple leaf on the Canadian flag in the ad, a headline read: "Canada Consumer Notification Consumer Alert", with a watermarked image of the Canadian Coat of Arms on both sides of the ad. The copy for the Auto Stimulus Program said that consumers could receive up to $2,000 off the purchase price of a vehicle when trading in their current vehicle. Council agreed that all the foregoing elements contributed to a misleading impression of governmental involvement. Council also found that the ad imitated the illustrations of another advertiser in such a manner as to mislead. Not surprisingly, the ad was permanently withdrawn.


Whom can one trust anymore? Clause 7 of the Code requires that testimonials in ads reflect the genuine, reasonably current opinion of the individuals making the representations and that they be based upon adequate information with the product or service being advertised. There should also be real people behind the statements and a lovely file that shows who they are and what they said. Someone might have mentioned this to, which advertised classes at a wellness facility using testimonials from apparent former attendees. One consumer didn't believe what he read and complained to ASC that the testimonials weren't genuine. As it turns out, was unable to identify the source of the testimonials and thus Council found that the ad contained false and misleading testimonials.


An automotive dealer in Alberta was accused of being discriminatory after it advertised a special price promotion exclusively for an identified immigrant community. Although the advertiser explained that the offer was intended to thank these immigrants for their support of the dealership, the advertiser withdrew the ad nonetheless before Council met to adjudicate the complaint. Council found that, by limiting the price offer in this way, the ad condoned discrimination based on national origin and thus violated Clause 14(a) of the Code.


We don't want you to forget about Clause 10 of the Code, dealing with safety. Although maybe not used quite as often as some of the others, we still see safety cases from time to time. For example, an automotive manufacturer ran a television ad in Quebec depicting two individuals, each driving a vehicle: one a careful driver and the other an impulsive one. Two complaints about the ad were filed with ASC alleging that the impulsive driver was shown executing an unsafe parking maneouvre. Council concluded that the commercial displayed a disregard for safety by depicting a situation that might reasonably be interpreted as encouraging unsafe practices or acts. The advertiser withdrew the ad before Council met to adjudicate the complaint.


Actually, we're not sure what the gesture was, but a "highly offensive and indecent" gesture was apparently made by an individual in an out-of-home ad in Quebec by a service provider in the recreation and entertainment industry. Council agreed that it was so and the advertiser withdrew the ad before Council met to adjudicate the complaint....surprise, surprise!

d. Omissions


In a national television commercial, (an online auction company) claimed that savings of "up to 95% off retail" were possible with this exciting new online way to shop for products. The advertiser demonstrated this in the commercial with the display of various products at both "retail" price and a much lower "bid "or "sold" price. "When someone places a bid, the prices increase by as little as one cent, resulting in insanely low prices," or at least that is what the spokesperson in the ad claimed before inviting viewers to go to, enter promo codes, and receive a stated number of free bids. Two complainants alleged that the ad was missing key information and was misleading. Council agreed that the commercial was missing key information – such as how the auction actually worked, what it cost consumers to participate in Quibids' auction process and that the money bid by participants was not recoverable by the bidder if he or she did not ultimately "win" the auction. As a result, Council found that the commercial was misleading, omitted relevant information in a manner that was deceptive and did not clearly and understandably state all pertinent details of the offer pursuant to Clauses 1(a), (b) and (c) of the Code.


50% off the price of ALL glasses, including prescription lenses. Sounds great, except when it's not true. In this case, progressive lenses were excluded from the sale. So when the advertiser would not honour the discount as advertised online, the complainant went to ASC. Council found that the advertisement was misleading and omitted relevant information – like what was excluded from the offer. Note to advertiser: In the absence of any exclusions, "all" (sorry) means "all".


Here's an interesting one. On its website, a retailer offered to match the price of any competitor's price for the identical items...BUT, it didn't say the price of any competitor "in Canada". The complainant alleged that the advertisement was not true because the retailer would not match the prices of a US online retailer. There was nothing in the advertiser's price match policy that excluded US online vendors so Council found that the advertisement contained an inaccurate claim, omitted relevant information, and did not clearly and understandably state all pertinent details of the offer. The ad was amended before the Council hearing.

e. Major Advertisers

Going Down ORECK CANADA. An air purifier was advertised on The Shopping Channel by Oreck Canada. Smoke matches were lit inside a closed, transparent chamber causing the entire chamber to fill with smoke. The air purifier was then turned on, resulting in the smoke disappearing. The complainant alleged that the commercial inaccurately depicted the air purifier as being able to remove cigarette smoke and its harmful effects from homes. By the way, according to statements by Health Canada, air purifiers cannot eliminate all the cancer-causing agents of cigarette smoke. The advertiser took the position that its commercial did NOT claim that the air purifier eliminated cigarette smoke and its harmful effects. After careful consideration, though (including repeated views of the commercial), Council felt that the visual depictions were very persuasive and thus the ad created the general impression that the product could and would eliminate cigarette smoke and its effect from homes. Moral of the story: Visual depictions can be just as powerful and persuasive as spelling out a claim in a super or voiceover.

SAMSUNG. A Samsung promotion claimed that purchasers of select Samsung products would receive ten free movie rentals. A consumer said he purchased one of the products, but Samsung would not honour the terms of the promotion. When asked by ASC to comment on the complaint, Samsung did not respond. Council accordingly accepted the complainant's statement as being factual and found the ad to be misleading and to omit relevant information about the offer.

WIND MOBILE. In a national print ad, Wind Mobile advertised a cellphone for $249 on WINDtab. When attempting to purchase the phone from a Wind Mobile retail outlet, however, an existing consumer was not able to do so at the advertised price. Why? Because the offer applied to new activations only (a condition that was not stated in the print ad). The advertiser DID have "conditions apply" stated in small print. Was that enough? Council thought not. It found that the ad omitted relevant information and did not state all pertinent details of the offer in a clear and understandable manner.

SEARS CANADA. Details, details. You can imagine the consumer's surpise when she believed that she was purchasing a fab TV for $199.99 (as advertised on Sears Canada's website) only to discover that the actual price was $1,999.99. Sears Canada acknowledged that an inadvertent pricing error had been made. Council found that the ad contained an inaccurate price claim. We assume the consumer is still watching her old TV.

f. And Weighing in With the Most Complaints...

A whopping 56 complaints were received by ASC for an internet ad in Alberta by Fluid Hair Salon. What could a hair salon possibly do to get so many people upset? The ad depicted a well-dressed woman with a black eye sitting on a couch. A man holding a necklace stood directly behind her together with the tagline: "Look good in all you do." The complainants were outraged by the ad that they said condoned violence against women. Despite the salon's response that the ad was intended to portray women as strong individuals in the face of adversity, ASC felt the ad had the effect of trivializing violence against women and exhibited indifference to unlawful behaviour and attitudes that offended standards of decency among a significant segment of the population (Clauses 14 (b) and (d) of the Code).

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.

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