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Que Passa in Québec André Rivest & Melissa Tehrani LEXPERT Advertising and Marketing Law Conference December 10, 2013.

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Presentation on theme: "Que Passa in Québec André Rivest & Melissa Tehrani LEXPERT Advertising and Marketing Law Conference December 10, 2013."— Presentation transcript:

1 Que Passa in Québec André Rivest & Melissa Tehrani LEXPERT Advertising and Marketing Law Conference December 10, 2013

2 2 Parlez-vous Social Media? A few things you should know: Consumer Protection Act: Recent developments and investigations Thinking of sponsoring an event? Don’t forget about the prohibition against advertising to children in Quebec Tales from the Régie trenches From outdoor signage to Tweets : Staying on-side Quebec’s language laws Lessons to be learned from recent consumer-related class actions

3 Consumer Protection Act: Recent developments and investigations

4 4 The Consumer Protection Act Interest Rate Advertising : No person may, in any advertisement concerning credit, disclose a rate regarding credit unless he also discloses, with equal emphasis, the credit rate computed in accordance with this Act (s. 246 C.P.A.).

5 5 The Consumer Protection Act Pricing Representations: No merchant, manufacturer or advertiser may, falsely, by any means whatever, indicate a regular price or another reference price for goods or services (s. 225(b) C.P.A.).

6 6 The Consumer Protection Act Pricing Representations: The “regular price” must be established based on the Time/Volume Test (s (2) Competition Act): “Volume Test”: A substantial volume of a product was sold at that price or a higher price within a reasonable period of time before or after the making of the representation. “Time Test”: Product must be offered for sale, in good faith, at that price or a higher price for a substantial period of time recently before or immediately after the making of the representation.

7 7 The Consumer Protection Act Extended Warranty Plans: A merchant must, before offering a contract of additional warranty to a consumer, inform the consumer orally and in writing (in the manner prescribed by regulation) of the existence and nature of the legal warranty (s C.P.A).

8 Thinking of sponsoring an event? Don’t forget about the prohibition against advertising to children

9 Advertising to Children 9 Since 1978, the Quebec Consumer Protection Act has prohibited commercial advertising to children under thirteen years of age According to a study, children between the ages of 3 and 5 years old show an “emerging ability” to use ads to judge which products will be the most “fun” and make them popular – even if they can’t read yet! At the age of 4, the majority of kids are able to recognize hundreds of logos Canadian children between the ages of 2 to12 spend $1,5 billion of their own pocket money each year

10 Advertising to Children 10 The Rule: Commercial advertising directed at children under 13 years old is prohibited in Quebec! Factors to consider when assessing whether an ad is “directed at children”: Nature and intended purpose of the good advertised Manner of presenting the advertisement Time and place it is shown, and The general impression N.B. The ban also applies to those who design, distribute, publish or broadcast the advertisement.

11 Advertising to Children 11 The OPC’s Guide to the Application of Sections 248 and 249 Consumer Protection Act: Do the goods or services target children? Do they appeal to them? Are children exposed to the ad? Yes, they are primarily aimed at children and appeal to them. They are aimed at the whole family but, yes, they do have a strong appeal for children. No, they are aimed at teenagers and adults and do not appeal to children. Yes, the advertising format or medium used allows for reaching children. Advertisement prohibited Advertisement prohibited if the message is designed to arouse the interest of children. Advertisement allowed provided that the message is not designed to arouse the interest of children. The advertising format or medium used allows for reaching people other than children. Advertisement prohibited if the message is designed to arouse the interest of children. Advertisement allowed provided that the message is not designed to arouse the interest of children. Advertisement allowed

12 Advertising to Children 12 The Exceptions: Ad appears in a magazine/insert directed at children and meets various conditions (e.g. magazine/insert is for sale and published at least quarterly, ad meets the requirements of section 91 Regulations) Ad appears in a store window, on a display, container, wrapping or product label and meets the requirements of section 91 Regulations Ad announces a programme/show directed at kids and the advertisement complies with section 91 Regulations

13 Advertising to Children 13 Saputo’s Igor Muffin Campaign  Saputo pleaded guilty to 22 charges of having advertised to children under 13 years of age by distributing advertising materials in day care centers  Settlement agreement: $44,000 in fines  P2P Promotion Publicité Inc. pleaded guilty as well and was ordered to pay $16,000 in fines

14 Advertising to Children 14 General Mills Canada  Pleaded guilty to having offered various online games directed at children on their luckycharms.ca website, which games contained promotional messages  Fine: $2,000

15 Tales from the Régie Trenches…

16 16 Printing Errors : How to Fix or Prevent it: Contest Rules should include a clause allowing the sponsor to withdraw or amend the contest in the event of an error or glitch Contact the Régie (the Régie’s permission is required to alter/amend contests in Quebec) Recent Contest Issues and How to Fix Them Moral: when printing or production errors result in too many prizes being seeded, not even iron-clad rules can prevent massive PR problems

17 17 Lost in Translation: The Problem: The English rules require participants to create an “advertisement” video; French rules state “avertissement” (i.e. a warning/caution). The English version of the contest rules states that the contest closes on December 31 st 2010 at 12 p.m. The French version states 12 a.m. How to Fix it: Contact the Régie Consider extending or amending the contest deadlines/criteria to conform to the latest time/include all videos, if permitted by the rules. Recent Contest Issues and How to Fix Them

18 18 Lost in Translation: How to Prevent it: The importance of accurate translations cannot be overstated Have a bilingual lawyer review the French rules against the English rules Use either an “English version will prevail” or a “French version will prevail” clause in the contest rules Recent Contest Issues and How to Fix Them

19 19 Changes to the Contest Rules: The Problem: Your client asks you to amend the contest rules (i.e. to exclude previously included residents, add residents from other countries, modify contest dates, etc.) after the contest has been launched What can you do? Contact the Régie. Régie’s permission is needed to alter/amend contests in Quebec. Recent Contest Issues and How to Fix Them

20 20 Changes to the Contest Rules: Régie’s Position: A person may not cancel or make any changes to a publicity contest from the time it is publicly launched unless the Régie so authorizes it on the basis of proof of superior force, or where the Régie is of the opinion that the public will not be adversely affected How to Prevent It: Ensure that all contest details, dates and admissibility criteria/requirements are finalized prior to contest launch Recent Contest Issues and How to Fix Them

21 From outdoor signage to Tweets: Staying on-side Quebec’s language laws

22 Charter of the French Language Trade-Marks in Commercial Signage: 22

23 Charter of the French Language 23 According to the OQLF, businesses may identify themselves by using:  An English trade-mark accompanied by a French generic descriptive term;  An English trade-mark accompanied by a French generic descriptive expression or slogan;  A French version of the trade-mark displayed exclusively; or  Both the English and French versions of the trade-mark, displayed with the French version being “markedly predominant.”

24 Charter of the French Language Motion for Declaratory Judgment filed by 24

25 New Media Websites and electronic messages are assimilated to “catalogues, brochures, folders & similar publications”  subject to the equal prominence rule 25 Another language may also be used provided that the French version is displayed at least as prominently as every other language

26 New Media 26 Exceptions:  May send an English-only commercial publication to a natural person who has made a written request to receive such documents in that other language

27 New Media 27 What about… Commercial publications concerning: o a cultural or educational product; o concerning a cultural or educational activity; or o promoting a news medium; may be exclusively in a language other than French provided that: o the content of the cultural or educational product is in that other language; o the activity is held in that other language; or o the news medium publishes or broadcasts in that other language¸.

28 New Media Cultural / Educational Product Cultural / Educational Activity Promoting a News

29 Charter of the French Language Potential Consequences: Fine of $1,500 to $20,000 Fines are doubled for a subsequent offence In determining the amount of the fine, judge considers, among other things, the revenues and other benefits derived from the offence, and any damages or socio- economic consequences resulting from the offence An additional discretionary fine equal to the financial gain the offender realized or derived from the offence may be imposed by the judge Any person who distributes, sells by retail, offers for sale, or otherwise markets a non-compliant publication or product is guilty of an offence and liable to the fines provided above Scope of liability for an offence extends to those who, by their actions or omissions, assist a person in committing an offence or advise, encourage or incite a person to commit such an offence 29

30 Recent Consumer-Related Class Actions

31 Quebec Class Actions Class Actions: Brière v. Hyundai Auto Canada Corp.; Berthelet v. Kia Canada Inc.; Petit v. New Balance Athletic Shoe, Inc. et als. … all filed in Quebec. 31

32 Thank You montréal  ottawa  toronto  hamilton  waterloo region  calgary   vancouver  beijing  moscow  london Melissa Tehrani André


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