Marketing and Advertising Law: Truth in Advertising

Your marketing needs to be truthful.  A simple thing to say.  It’s much more difficult to put into practice.

Every business markets itself.  Whether that marketing takes the form of magazine advertisements, billboards, social media advertisements, or flyers, your marketing message has to connect with your target market.  And connecting to your target market has to involve more than merely publicizing your name.

Is the Marketing Deceptive?  Whose Perspective Decides?

When you create marketing materials, it’s not a wild west.  There are established rules that have to be followed.

Marketing materials cannot contain, either direct or implied, inaccurate or deceptive claims, statements, illustrations or representations about a product or service.

However, it’s not the intention or perspective of the sender you need to look at when determining if a message is truthful or accurate.  Rather, you have to look at how consumers receive or perceive the message, for example, by looking at the general impression the marketing conveys.

Furthermore, marketing cannot omit relevant information which results in deception.  And information appearing in the footnotes must not contradict more prominent aspects of the message.

No Material Misrepresentation

Few people have the picture perfect workplace.  That said, having such a workplace in your advertisement is acceptable, as certain falsehoods are.

What the law does not permit is any misrepresentation that will have the effect of influencing a consumer’s behaviour.

Therefore, representing your sales people as perfectly coiffed and cheerful would likely not affect a consumer’s behaviour.  However, stating in your advertisements that the prices for your consumer electronics are the lowest in the country would be a material misrepresentation and unlawful.

Comparative Advertising

Unless you are a monopoly, you have got competitors.  Independent salespersons may compare your products with a competitor and sometimes all you can do is hope that the comparison is favourable.  However, that’s not a message you control.  So, why not make the comparative message in something you do control – your own marketing.

Comparative advertising is permitted in Canada, so long as it’s done with a careful hand conscientious of the rules.

Never disparage your competitor’s products or services.  Comparative advertising is not the time for humour or jokes at the expense of your competitor.

Avoid use of your competitor’s logos and packaging which could constitute copyright infringement.  Also avoid use of your competitor’s trade-marks which could expose you to claims of trade-mark infringement, depreciation of goodwill, or passing off.

Carry out the comparison in a fair and even-handed way.  You do not have to dwell on the strengths of your competitor’s products or services, however that does not mean you are entitled to overemphasize the strengths or hide the weakness of your own products or services.

Overall, be truthful about your advertising claims and make sure you have evidence to back them up.