Canadian Advertising Law: 2023 Year in Review

In 2023, the Canadian advertising legal landscape continued to transform and evolve. In this bulletin, we summarize some notable developments. We expect that businesses that advertise and promote their products or services in Canada will experience the implications of these developments in 2024.

Proposed Amendments to the Competition Act, Including a Private Right of Action

On November 30, 2023, Bill C-59: An Act to implement certain provisions of the fall economic statement tabled in Parliament on November 21, 2023 and certain provisions of the budget tabled in Parliament on March 28, 2023 (Bill C-59) received its first reading.

The most notable proposal regarding advertising is the significant expansion of private rights of action in relation to deceptive marketing practices. Bill C-59 would amend section 103.1 of the Competition Act (Act), enabling private parties to bring applications before the Competition Tribunal (Tribunal) in relation to a party’s reviewable conduct under the civil deceptive marketing provisions in section 74.1 of the Act. The Tribunal may grant leave to make an application if it is satisfied that it is in the public interest to do so. This means that private parties (including competitors and consumers) could gain new authority to seek orders regarding deceptive marketing conduct, which could include monetary relief, heightening the risks of misleading advertising. If passed, the expanded private rights of action will come into force one year after Bill C-59 receives Royal Assent.  

Bill C-59 would also add an express clarification to the Act that greenwashing constitutes misleading advertising. If passed, the amended provision would explicitly capture any representation regarding a product’s benefits for protecting the environment or mitigating the environmental and ecological effects of climate change that is not based on adequate and proper tests. The move to codify this language into the Act suggests that the focus on environmental and sustainability claims is here to stay.

Bill C-59 would also introduce other changes in relation to enforcement, including:

• Expanding the ability for the court to issue an interim injunction based on the application of any person who was granted leave under section 103.1 of the Act to challenge deceptive marketing conduct; and

• Adding administrative monetary penalties of up to C$10,000 for each day of non-compliance, and potential prohibition or other orders, for a person’s failure to comply with a consent agreement related to deceptive marketing practices under section 74.12 of the Act. 

Companies should update their compliance programs and training to reflect the increased risk of private applications and compensation being awarded.

For more information on Bill C-59, see our November 2023 Blakes Bulletin: Revamping the Rules: Canadian Competition Act Update.

Competition Bureau Enforcement

In 2023, the Competition Bureau (Bureau) pursued a number of enforcement actions in relation to deceptive marketing practices, which included:

• In May 2023, the Bureau sued a major entertainment company for alleged misleading ticket prices. Following its investigation, the Bureau is alleging that consumers could not buy tickets at the advertised price without paying a mandatory C$1.50 booking fee and this practice constitutes drip pricing.

• In September 2023, a Bureau investigation found that a multi-brand retail company offered products at inflated regular prices and then advertised them at big discounts. The company also made marketing claims which gave consumers a false or misleading representation that deals would only be available for a certain time, when this was not the case. The company agreed to pay a C$3.25-million penalty and C$100,000 towards the Bureau’s investigation costs as part of a consent agreement.

• A ticket marketplace company faced allegations of promoting tickets at unobtainable rates, constituting drip pricing. The Bureau alleged the company also used other misleading marketing tactics, giving consumers false impressions about the tickets they were purchasing. In November 2023, the company entered into a consent agreement and agreed to pay a C$825,000 penalty and cease all deceptive marketing claims at issue, in addition to establishing a compliance program.

• A music application company faced allegations regarding false or misleading claims about the “free” nature of its mobile music application, and the purchase of positive third-party reviews regarding this app. In December 2023, the company agreed to pay a partial penalty of C$310,000, in satisfaction of the imposed full penalty of C$1.5-million. If the Bureau obtains evidence that the company has not disclosed all its assets, then the full penalty will take effect.

• In December 2023, the Bureau obtained a court order to advance its investigation of a major telecommunications company's alleged misleading advertising claims regarding the unlimited data features of one of its wireless phone plans.

These enforcement actions indicate that false or misleading claims regarding the price of a product or service remain a high enforcement priority for the Bureau.

Ad Standards Developments

In 2018, Ad Standards developed the Influencer Disclosure Guidelines (Guidelines) to help influencers and advertisers understand their obligations to meet the disclosure requirements under the Canadian Code of Advertising Standards. In 2023, the Guidelines were revised to include examples of sufficient versus insufficient disclosure based on the type of post (i.e., static posts, video posts, character-limited posts, etc.), compared to the 2020 version of these Guidelines which gave examples based on the advertising platform (i.e., Snapchat, Twitter, etc.).

In June 2023, the Code for the Responsible Advertising of Food and Beverage Products to Children (Code) took effect, which sets new restrictions on advertising certain foods to children. Under the Code, no advertising for a food or beverage product may be primarily directed at a child unless the product satisfies specific nutrition criteria. This core restriction applies to advertising featuring a food or beverage product directed to residents of Canada in any media, including social media, streaming services, applications and games. “Child” is defined as a person under 13 years of age.

For more information on these new restrictions, see our July 2023 Blakes Bulletin: New Restrictions on Advertising Food and Drinks to Children.

Quebec Contest Laws

In a surprising turn of events, the legislative provisions imposing Quebec’s unique contest requirements were repealed. The practical result is that the previous unique regulatory scheme that governed contests in Quebec has been abolished. 

In October 2023, Bill 17: An Act to amend various provisions for the main purpose of reducing regulatory and administrative burden (Bill) received assent. Among other things, this Bill repealed provisions of the Act respecting lotteries, publicity contests and amusement machines, and eliminated the Rules respecting publicity contests in entirety, effective immediately. All references to publicity contests within the act, including in its title, have been repealed.

Sponsors of publicity contests no longer have to register their contests in Quebec and contend with the other requirements of Quebec’s contest legislation.

For more information, please contact:

or any member of our Marketing & Advertising group or Competition, Antitrust & Foreign Investment group.