Legislation and regulation
- What are the principal statutes regulating advertising generally?
The principal federal statute regulating advertising in Canada is the Competition Act, which is a law of general application and applies to both business and consumer advertising. It includes both civil and criminal provisions prohibiting representations to the public promoting the supply or use of a good or service or any business interest that are false or misleading in a material respect.
Generally speaking, the 10 Canadian provinces and three Canadian territories regulate advertising to consumers (but not to businesses) through their respective consumer protection statutes that include provisions relating to unfair practices (i.e., deceptive or unconscionable representations that include false advertising). While there are many similarities between these statutes, there are important differences (especially, although not exclusively, respecting the laws of Quebec).
- Which bodies are primarily responsible for issuing
There are federal and provincial or territorial governmental bodies with primary responsibility for regulating advertising as well as self- regulatory bodies.
advertising regulations and enforcing rules on advertising? How is the issue of concurrent jurisdiction among regulators with responsibility for advertising handled?
The Commissioner of Competition (the Commissioner) is vested with primary authority for enforcing the Competition Act and heads the Competition Bureau (the Bureau), an independent law enforcement agency. The Commissioner, supported by the Bureau, investigates both criminal and civilly reviewable matters under the Competition Act. In terms of enforcing the civil provisions, the Commissioner has the power to refer matters either to the Competition Tribunal (the Tribunal) or to the Federal Court or superior courts of the provinces (collectively, the Courts, each a Court). The Tribunal and the Courts have concurrent jurisdiction in respect of ‘deceptive marketing prac- tices’. Criminal matters under the Competition Act are prosecuted in the courts of criminal jurisdiction (as defined in the Criminal Code of Canada) by the Director of Public Prosecutions (DPP). The initiation and conduct of all criminal prosecutions are the responsi- bility of the DPP, which has decision-making power independent of the Commissioner.
The administration and enforcement of provincial or territorial consumer protection laws is the primary responsibility of the applica- ble provincial or territorial ministry.
Advertising Standards Canada (ASC), the advertising industry’s self-regulatory body, maintains the Canadian Code of Advertising Standards (the ASC Code), by which advertisers must abide. The ASC Code is the advertising industry’s principal instrument of advertis- ing self-regulation. Advertisers’ violations of the ASC Code may be reported by consumers or advertisers by filing a complaint with ASC, each with its own distinct complaint resolution process. ASC will not accept a complaint (whether from a consumer or an advertiser) if it is already before the Commissioner, the Tribunal or the Courts.
The Canadian Marketing Association (CMA) is a national non- profit corporation that embraces Canada’s major business sectors and
all marketing disciplines, channels and technologies. Compliance with the CMA’s Code of Ethics and Standards of Practice (the CMA Code) is compulsory for its members. The CMA Code is enforced through the process described in question 3.
With respect to the handling of concurrent jurisdiction, there are a couple of general rules. First, as in the case of ASC, a self-reg- ulatory body will generally not get involved in a complaint when the complaint is already before the Commissioner, the Tribunal or the Courts. And second, as between government regulatory bodies, in the case of a complaint where both a federal body and a provincial or territorial body have appropriate constitutional and jurisdictional authority, there is no impediment to both dealing with it (although in practice this is rare); and in the case of two bodies within one level of government, there is often a memorandum of understanding (MOU) that helps determine which body will take charge. In March 2015, the Bureau announced an MOU with Ontario’s Ministry of Government and Consumer Service to notify each other about enforcement activi- ties, advise on strategic priorities, trends and policies, and coordinate communications to the public on consumer protection and competi-