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