New England Biz Law Update
Whether you simply like to make fun of Canadians, or your company advertises in Canada, you may be surprised to learn that our friends to the North can be even more politically correct than we are when it comes to advertising.
Before I go any further let me first admit my bias – not against Canadians, I love them. But I am upset that the U.S. seems to be suffering from an ever increasing sense of political correctness and special interest groups with a decided lack of sense of humour about themselves.
What also caught my interest about this issue and I hope will catch your interest is that this is another example of the daily risk analysis that in-house counsel face and, more importantly, one that at least I would have gotten wrong.
I had assumed that the Canadian advertising rules were like those in Europe, meaning more relaxed about sex and humor. I was wrong. Quite to the contrary, my Canadian friends had taken political correctness seriously, and, quite some time ago in fact, established an industry code of advertising conduct that prohibited “unacceptable depictions and portrayals.”
Any idea what that prohibits? I didn’t.
I turned to Kelly Moffatt, a partner with Canada-based Osler Hoskin & Harcourt. Kelly is the co-chair of the firm’s franchise, marketing and distribution specialty group and specializes in advertising law. Kelly works extensively with advertising and promotional agencies, and advises Canadian and foreign-based clients in connection with consumer protection legislation, advertising and promotions, packaging and labelling, e-commerce and distribution and pricing matters.
Here is why as I mentioned, regardless of whether your company advertises in Canada, you should care about this issue.
In-house counsel are, especially in smaller law departments, constantly being asked to review things that we frankly know little to nothing about. That would not be a problem except for the fact that these same in-house counsel often don’t have the time or budget to learn about the things they know nothing about.
We are constantly called upon to perform a real-time risk analysis about whether we are willing to assume that the law is what we think it probably is. For me, and I know for many of my in-house colleagues, that work includes reviewing advertising copy and other marketing materials. What bothers me is that I would have gotten these ones wrong.
Take a look at the following real life examples of Canadian advertisements that were each pulled from distribution after being held to violate the Canadian Code of Advertising Standards.
You tell me if you would have ever guessed there would be a problem if your company were to use them in the Canadian marketplace.
• A magazine print advertisement featured a woman working on outdoor chores and speculating that her chapped hands were a result of her husband’s laziness. In response to just one consumer complaint, this copy was held to be demeaning, denigrating and disparaging of men.
• A radio commercial included a “gypsy” character with a heavy accent and reference to a curse on a family. The exaggerated accent and the use of threatening language raised concerns and lead to the finding that the portrayal was a stereotypical and a negative characterization of an identifiable group.
• An advertisement for a household product that focussed on various clothed female and male body parts was found to gratuitously exploit both female and male sexuality. In particular, the fact that the featured products were unrelated to nudity or sexuality supported the finding that the advertisement demeaned and denigrated women and men.
Each of the above examples was held to violate the Code’s specific restrictions on “unacceptable depictions and portrayals.” This wonderfully ambiguous and broad prohibition accounts for the majority of the consumer complaints, 629 of the total 1,133 complaints received during 2003. (The Code also addresses, similar to the US advertising statutes as well as other Canadian federal and provincial legislation, standards relating to truth, accuracy and fairness).
The Code is administered by Advertising Standards Canada (ASC) and allows for both consumer and competitor complaints.
Where an advertisement is found to violate the Code, the advertiser is asked to amend or withdraw it. If the advertiser fails to do so, the ASC notifies the media in which the advertisement is being played and the media company generally agrees not to further broadcast or display the advertisement in question. It’s sort of a two-stage, “I’ll tell mom if you don’t comply” enforcement process.
While the ASC upheld only 12 percent of the consumer complaints received in 2003, as you can imagine the process of defending an advertisement can be time consuming, expensive and doesn’t exactly help the results of the ad campaign.
As a result, before launching advertising materials in the Canadian market, it is important to keep in mind that notwithstanding a left-wing liberal image, Canadian consumers still maintain somewhat conservative views on what constitute unacceptable depictions and portrayals for the Canadian advertising market.
