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.