ARTICLE
3 November 2009

Bureau Guidelines Focus On Consumer Rebate Promotions

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On September 21, 2009, the Competition Bureau released its Enforcement Guidelines on Consumer Rebate Promotions.
Canada Antitrust/Competition Law

On September 21, 2009, the Competition Bureau released its Enforcement Guidelines on Consumer Rebate Promotions. These Guidelines set out the Bureau's (non-binding) interpretation of both the criminal and the civil provisions relating to false or misleading representations under the Competition Act, the Consumer Packaging and Labelling Act, and the Textile Labelling Act as applied to consumer rebate promotions, and include examples of recommended best practices.

The Guidelines define consumer rebate promotions to include any type of promotion that involves a partial refund or discount from a manufacturer or retailer to consumers upon purchase, and make a distinction between "instant" rebates and "mail-in" rebates, the latter of which include any rebate obtained other than immediately at the time of purchase. The Bureau does not consider gift cards and other forms of credit on future purchases to be "rebates" for the purposes of the Guidelines, apparently taking the view that most consumers are likely to associate the term "rebate" specifically with the return of a portion of the price paid for the article or service in question.

The Guidelines review the issue of who bears responsibility for making false or misleading representations in connection with consumer rebates. As a general principle, liability for a representation attaches only to the person(s) who cause the representation to be made. The Guidelines make it clear that, pursuant to statute, the Bureau will generally view both the manufacturer and the retailer to be liable for misleading consumer rebate representations on or accompanying a product, unless the manufacturer is outside Canada, in which case the Bureau will view the importer and the retailer to be liable.

The heart of the Guidelines describes, with examples, the following five consumer rebate promotion practices that, in the Bureau's view, could comprise false or misleading representations, and in each case advises how to avoid problematic representations:

  • Inadequate Disclosure of Rebate Conditions, Limitations and Exclusions - avoided by clear and conspicuous disclosure of all information that may be material to a consumer's purchase decision (a list is provided);
  • Rebates Disguised as the Sale Price or Regular Price - avoided by refraining from the use of "sale" in reference to a consumer rebate;
  • Mail-in Rebates Disguised as Instant Rebates - avoided by prominent disclosure of the type of rebate offered;
  • Discounts on Future Purchases Disguised as Rebates - avoided by excluding any gift card or other future-purchase discount from representations as to the "price" of a product or as a "rebate";
  • Mail-in Rebates that are not Fulfilled - avoided by taking measures to ensure fulfillment houses and other service providers are performing in accordance with the rebate terms and conditions. The Guidelines go on to provide hypothetical examples of best practices with respect to instant and mail-in rebate offers.


The Guidelines reaffirm the Bureau's view that a case-by-case application of the false and misleading representations prohibitions under the legislation it administers is most appropriate for a wide variety of marketing practices, including consumer rebate promotions. However, the Guidelines also signal that the Bureau will firmly apply certain rules, at least presumptively, as it enforces these prohibitions. In particular, the Bureau clearly opposes the framing of any "in kind" payments to consumers (e.g., gift cards) as "rebates," and the characterization of a "rebate" as a type of "sale." In view of this, marketers will do well to ensure that any use of "rebate" or "sale" is accompanied "clear and conspicuous disclosure" to consumers of just what is meant by these terms as used in the representations in question.

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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