CANADA Law and Practice Contributed by: Martha Harrison, Nikiforos Latrou, Eugenia (Evie) Bouras and Marissa Caldwell, McCarthy Tétrault
within their governing statutes. Violations of such acts can lead to investigations, recalls and fines. 1.3 Liability for Deceptive Advertising Liability for deceptive advertising extends to any per - son, including influencers, endorsers or businesses (eg, retailers and distributors), making the deceptive representation. At the provincial level, consumer protection statutes impose liability on businesses and individuals involved in advertising, which can include directors and officers of a corporation. In Québec, liability can even extend to third-party service providers or anyone who has disseminated the deceptive advertisement. 1.4 What Is Advertising? The Competition Bureau considers as an advertise - ment any form of representation to the public intended to influence a person to buy, use or consume a prod - uct or service, or to promote a business interest. The term “representation” has been interpreted broadly to include: • verbal statements (eg, communications from sales representatives); Similarly, at the provincial and territorial level, advertis - ing is broadly understood to include any representa - tion – written, oral or visual – made to promote the supply or use of goods or services. This encompass - es traditional media, digital platforms, point-of-sale materials and even product packaging. 1.5 Pre-Approvals In general, pre-approval is not mandatory for most commercial advertising in Canada. However, certain sectors and claims – especially those involving health products, food and beverages, cosmetics and adver - tising to children – are subject to voluntary or recom - mended pre-clearance. For example, Health Canada requires that advertising for prescription drugs and certain health products be reviewed by independ - ent agencies such as the Pharmaceutical Advertising Advisory Board or Ad Standards. These agencies offer • illustrations or photographs; • auditory or visual effects; or • omission of a material fact.
advisory opinions and pre-clearance services for a fee to ensure compliance with federal regulations. Ad Standards, Canada’s leading not-for-profit adver - tising self-regulatory body, offers voluntary pre-clear - ance services across six categories: • alcoholic beverages; • children’s advertising; • cosmetics, food and non-alcoholic beverages; • responsible advertising to children; and • health products. While not legally required, broadcasters often require pre-clearance in these sectors before allowing the advertisement to air. Accordingly, advertisers often seek pre-clearance to mitigate risk and demonstrate compliance. Approved ads may feature the Ad Stand - ards logo, signalling adherence to the Code. 1.6 Intellectual Property and Publicity Rights The general rules governing the use of intellectual property apply to advertising. The primary concern from an intellectual property per - spective is that advertising content does not infringe a third party’s intellectual property rights, most notably copyright or trade mark rights. A secondary concern is that the use of a competitor’s marks in making com - parative claims – or even just for nominative purposes – could violate Canadian trade marks law. In Canada, personality rights, which include the right to privacy and the right to publicity, protect the use of a person’s image and personal characteristics. These are common law rights that belong to the individual and which restrict the use of an individual’s identity (name, voice, likeness) for commercial purposes with - out their permission. Accordingly, it is important to respect these rights, and to seek permission before using an individual’s name, picture, voice or likeness in advertising. 1.7 Self-Regulatory Authorities Ad Standards oversees virtually all commercial adver - tising directed to the Canadian public, including print, broadcast, digital and out-of-home formats. The Code applies to any advertiser promoting goods or services.
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