General impression test (Canadian advertising/marketing law).
A term used in the context of advertising and marketing law, and in particular in relation to misleading advertising under the Competition Act. In general, an advertising or marketing claim may contravene the “general” criminal (section 52) or civil (section 74.01) misleading advertising provisions of the Competition Act if it is literally false or misleading or if the “general impression” of the claim is false or misleading.
In this regard, subsection 52(4) of the Competition Act provides: “In a prosecution for a contravention of [the criminal misleading advertising section], the general impression conveyed by a representation as well as its literal meaning shall be taken into account in determining whether or not the representation is false or misleading in a material respect.” The general civil misleading advertising provisions contain a similar section (subsection 74.03(5)). As such, when reviewing advertising and marketing for compliance with the misleading advertising provisions of the Act, the entire context of a claim or representation must be considered, including the association and placement of words, the placement and choice of images, graphics and pictures, and as well consideration of whether the omission of material information (e.g., relating to price, quality, scope of services, important conditions, limitations, etc.) may mean that the “general impression” of the overall claim or representation could be seen as false or misleading.
The Competition Bureau’s 2001 Misleading Advertising Guidelines provided one of the most detailed and relevant discussions of the “general impression test”, despite having been since replaced by updated misleading advertising guidelines by the Bureau since: “Section 52(4) requires a court to take into account the general impression conveyed by a representation, in addition to its literal meaning. … The application of the general impression test is particularly important where: the representation is partially true and partially false, or the representation is capable of two meanings, one of which is false; the representation is literally true but is, in fact, misleading since it fails to reveal certain essential information … the representation is literally or technically true but creates a false impression, for example where the advertised results of a test of a product may not be significant to its use or efficacy but the representation makes it appear otherwise … ; the representation is literally true insofar as the oral or written statements are concerned but the visual part of the representation may create a false impression, for example where it depicts a model which is different from the advertised product …”
Richard v. Time Inc., 2012 SCC 8: “The general impression test provided for in [the Quebec Consumer Protection Act (the “CPA”)]must be applied from a perspective similar to that of ‘ordinary hurried purchasers’, that is, consumers who take no more than ordinary care to observe that which is staring them in the face upon their first contact with an advertisement. The courts must not conduct their analysis from the perspective of a careful and diligent consumer. … In applying the general impression test provided for in [the CPA] the Quebec courts have traditionally used the words ‘credulous’ and ‘inexperienced’ to describe the consumer in issue in the Act. … In sum, it is clear that … the ‘general impression’ referred to in [the CPA] is the impression of a commercial representation on a credulous and inexperienced consumer. … Thus, in Quebec consumer law, the expression ‘average consumer’ does not refer to a reasonably prudent and diligent person, let alone a well‑informed person. To meet the objectives of [the CPA] the courts view the average consumer as someone who is not particularly experienced at detecting the falsehoods or subtleties found in commercial representations.”
Professor Claude Masse, Loi sur la protection du consommateur: analyse et commentaires (1999), at p. 828: “Commercial advertising often plays on the general impression that may be conveyed by an advertisement and even on the literal meaning of the terms used. Information in advertisements is transmitted quickly. Advertising relies on the image and the impression of the moment. This general impression is often what is sought in advertising. By definition, consumers do not have time to think at length about the real meaning of the messages being conveyed to them or about whether words are being used in their literal sense. The content of advertising is taken seriously in consumer law. Consumers do not have to wonder whether or not the promises made to them or the undertakings given are realistic, serious or plausible. Merchants, manufacturers and advertisers are therefore bound by the content of messages actually conveyed to consumers.”
Competition Bureau, Ensuring Truth in Advertising, Additional Information About the Competition Act, The General Scope of the False or Misleading Representations and Deceptive Marketing Practices Provisions of the Competition Act: “Subsections 52(4), 52.1(4) and 74.03(5) [of the Competition Act] require a court to take into account the general impression conveyed by a representation, in addition to its literal meaning. This test applies to the following provisions: subsection 52(1) — false or misleading representations; subsection 52.1(3) — deceptive telemarketing; paragraph 74.01(1)(a) — false or misleading representations; paragraph 74.01(1)(b) — performance representations not based on adequate and proper tests; paragraph 74.01(1)(c) — misleading warranties and guarantees; subsections 74.01(2) and 74.01(3) — false or misleading ordinary selling price representations; and section 74.02 — untrue, misleading or unauthorized use of tests and testimonials. General impression is also an element of subsection 53(1), which prohibits deceptive notices of winning a prize. The application of the general impression test is particularly important where: the representation is partially true and partially false, or the representation is capable of two meanings, one of which is false; the representation is literally true but is, in fact, misleading since it fails to reveal certain essential information [i.e., the non-disclosure of material information]; the representation is literally or technically true but creates a false impression, for example where the advertised results of a test of a product may not be significant to its use or efficacy but the representation makes it appear otherwise …; the representation is literally true insofar as the oral or written statements are concerned but the visual part of the representation may create a false impression, for example where it depicts a model which is different from the advertised product …”
Competition Bureau, Enforcement Guidelines, “Product of Canada” and “Made in Canada” Claims: “When determining whether a ‘Product of Canada’ or ‘Made in Canada’ declaration has been made that is false or misleading, the [Competition Act] requires that the general impression conveyed by a representation as well as its literal meaning, be taken into account. Thus, when examining a particular representation, the Bureau will consider the general impression conveyed through a combination of words, visual elements, illustrations and overall layout that may alter the plain meaning of a representation.”
R. v. Imperial Tobacco Products Ltd., [1971] 5 W.W.R. 409 (Alta. Sup. Ct.), at paras 63-65: “Turning now to the final question, whether the impugned advertisement evidences an offence, the first point is whether the one sentence in large type, ‘$5 in every pack of new Casino’, on which the Crown rests its case, can be considered completely divorced from its context in determining whether the advertisement contains ‘a statement that purports to be a statement of fact but that is untrue.’ I am of the opinion that it would be contrary to accepted tenets of common law to attribute to a phrase a meaning which it bears standing alone, when in the context in which it is used it bears a different meaning. Whether a statement purports to be one of fact can only be determined by reference to the circumstances and context in which it was made. I do not gather from the reasons for judgment of the learned trial Judge that he necessarily held a different view on this point.
Nevertheless, the determination would not be coerced one way or the other, either by narrow or by vague parameters. The issue is whether in the context of the whole advertisement, the statement purports to be true, and the question is the standard to be used in the determination. The learned trial Judge adopted as his a phrase appearing in Aronberg et al. v. Federal Trade Commission, 132 F. 2d 165 at 167. The paragraph in which that phrase occurs is in these terms: ‘The law is not made for experts but to protect the public – that vast multitude which includes the ignorant, the unthinking and the credulous, who, in making purchases, do not stop to analyze but too often are governed by appearances and general impressions … Advertisements must be considered in their entirety, and as they should be read by those to whom they appeal.’
On this point, the following passage appears in Federal Trade Commission v. Sterling Drug Inc., supra [-. 674]: ‘It is therefore necessary in these cases to consider the advertisement in its entirety and not to engage indisputatious dissection. The entire mosaic should be viewed rather than each tile separately. ‘[T]he buying public does not ordinarily carefully study or weigh each word in an advertisement. The ultimate impression upon the mind of the reader arises from the sum total of not only what is said but also of all that is reasonably implied.’”
For more information, see: Advertising Law, Advertising Law FAQs and Misleading Advertising. See also: General Impression Test and Disclaimers.
Geofencing (advertising/marketing).
Wall Street Journal: “The idea behind geofencing is to target consumers when they are nearby—and the promotions can get hyper-local, like beaming a special on umbrellas to people within a 10-mile radius during a rainstorm, or touting a markdown on aisle 6 when a customer is walking down aisle 3.”
Geo Targeting (advertising/marketing).
An advertising industry term.
Interactive Advertising Bureau (IAB): “Basic geo-targeting allows targeting Internet users (targeting online or mobile devices) by means of cross referencing their IP address with a global ISP IP address directory. This permits ad servers that are connected to this database to target devices based on their IP address’ geographic location: state/province, city/municipality, telephone area code and postal/zip code. Really this allows reaching someone whose device is connected through Internet access based on that Internet access’s point of origin. It is not always as precise as we’d like it to be, nor is it always what we expect it to be though it’s quite logical why it isn’t.”
Geographic market definition (Canadian merger law).
U.S. Department of Justice and Federal Trade Commission, Horizontal Merger Guidelines (2010): “The arena of competition affected by [a] merger may be geographically bounded if geography limits some customers’ willingness or ability to substitute to some products, or some suppliers’ willingness or ability to serve some customers. Both supplier and customer locations can affect this. The Agencies apply the principles of market definition … to define a relevant market with a geographic dimension as well as a product dimension. The scope of geographic markets often depends on transportation costs. Other factors such as language, regulation, tariff and non-tariff trade barriers, custom and familiarity, reputation, and service availability may impede long-distance or international transactions.”
See also the definitions of “market definition” and “product market definition”.
Gift card (Canadian consumer protection law).
Financial Consumer Agency of Canada: “There are two main types of prepaid cards. Both require you to pay up front to ‘load’ money on to a card for later use and both are sometimes referred to as ‘gift cards’. Prepaid cards from retailers can only be used at a single store or group of stores, such as a chain or shopping mall. Other prepaid cards, usually branded with a payment card network operator’s logo, such as American Express, MasterCard or Visa, can be used at most merchants that display the specific network’s logo.”
Datacard Group: “A gift card is a type of stored-value payment card commonly issued by retailers and banks. Gift cards are preloaded with a set value. There are two major types of cards – those that can be used only at one store chain or one location (closed loop) and those that can be used anywhere (open loop). Closed loop gift cards generally carry no fees or expiration date – the issuing store makes its money off the profit from selling merchandise. Open loop gift cards always carry fees. Because they are issued by banks or credit card transaction processors, such as Visa or MasterCard, fees are the only way they can profitably issue gift cards.”
Ontario Consumer Protection Act Regulations: “’Gift card’ means a voucher in any form, including an electronic credit or written certificate, that is issued by a supplier under a gift card agreement and that the holder is entitled to apply towards purchasing goods or services covered by the voucher.”
Giveaway (Canadian contest/sweepstakes law term).
A “giveaway” is another term for a promotional contest or sweepstakes. In Canada, there is no legal distinction between using the terms “contest”, “promotional contest”, “giveaway” or “sweepstakes” to refer to promotional contests where prizes are awarded by way of random draw or skill with a no purchase entry option and, for random draw contests, a skill-testing question. Private parties cannot, however, generally run lotteries in Canada (i.e., where a purchase is required to enter or obtain a ticket or ballot to win a prize), unless a provincial license has been obtained to run a charitable lottery. For more information, see: Canadian Contest Laws. For rules and precedents to run promotional giveaways in Canada (i.e., contests/sweepstakes), see: Canadian Contest Rules and Forms.
Greenwashing (Canadian advertising/marketing law).
Devika Kewalramani & Richard J. Sobelsohn (Moses & Singer LLP): “’Greenwashing’ is a novel word that merges the concepts of ‘green’ (environmentally sound), and ‘whitewashing’ (to gloss over wrongdoing), to describe the deceptive use of green marketing that promotes a misleading perception that a company’s policies, practices, products or services are environmentally friendly. ‘Greenwashing’ officially became part of the English language in 1999 with its entry into the Oxford English Dictionary. It defines the term as ‘disinformation disseminated by an organization so as to present an environmentally responsible public image.’ The term is generally used when an organization expends more time and resources marketing their ‘greenness’ than actually adopting procedures that are environmentally beneficial. It includes the practice of misleading customers regarding the environmental advantages of a specific product or service through deceptive advertising and unsubstantiated claims.”
For more information, see: Green and Environmental Claims.
Gun jumping (Canadian merger law).
Allen & Overy, “Gun jumping in merger control”: “Under the merger control rules in the majority of jurisdictions, merging companies are prohibited from integrating their businesses until after the relevant merger clearance has been received. Competition authorities generally have the power to penalise companies that “jump the gun” and breach the suspension obligation. The policy reasons behind such rules are clear: until completion of a deal, the merging parties are independent entities and so should remain subject to the antitrust rules.”
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Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
