International Advertising Clearance - May 2004 - GALA

Television: Yes No
Radio Yes No
Internet Yes No
Print Yes No
Outdoor Yes No
A: Tobacco cannot be advertised in the above media. (Notably the last vestige of
tobacco advertising --- a small amount on signage will also be prohibited after October
1, 2003). Prescription drugs are limited to claims about cost/quantity and name.
Generally, alcohol may be advertised in the above media provided ads meet federal
broadcast guidelines for tv/radio and applicable provincial alcohol advertising
regulations/guidelines.
Q: What is your country’s law on privacy and/or rights of publicity regarding the use of famous
people in advertising without their express permission?
A: Canada’s federal privacy legislation, Personal Information Protection and
Electronic Documents Act, (“PIPEDA”) currently requires informed consent for the
disclosure of individuals’ personal information outside a province for consideration. On
January 1, 2004, informed consent must be obtained for the collection, use, disclosure of
personal information going outside a province. PIPEDA does not apply within a
province that is deemed to have “substantially similar” legislation to PIPEDA. Quebec
has its own privacy legislation and other provinces are developing privacy legislation too.
Several provinces have the common law tort of “misappropriation of personality”
(developed largely in Ontario) which refers to using person’s image/personality in
advertising without their consent for commercial purposes (i.e. often based on the notion
of an implied endorsement of a product/service without the consent of a celebrity
although, a non-celebrity complainant could also be successful). Other provinces
(British Columbia, Saskatchewan, Manitoba, Newfoundland and Quebec) have privacy
statutes that prohibit the use of a person’s personality/image in certain situations (often
the advertiser’s intention to use the person’s image without their consent will be
material).
Q: What is your country’s law on the use of other people’s products in advertising without the
product owner’s permission? For instance, if a mustard company used a very recognizable
automobile as part of its advertisement, would the automobile company have a right of action
against the mustard company for false affiliation or false endorsement?
A: Yes
They may have a right of action in connection with use of the car’s trade mark especially
if the trade mark is registered for “services” in which case advertising constitutes “use” of
a trade mark.
Q: Are there any restrictions or regulations with respect to price advertising?
A: The federal Competition Act has requirements and guidelines concerning the
determination of prices used in price claims with respect to the “ordinary price” that is
referenced in the ad. Price claims must meet a “time test” or a “volume test. The ASC
Code has similar provisions.