Health Canada Modernizing Self Care Product Regulation

Posted on by Gordon B. Greenwood

Self care products are essentially what we know as cosmetics, natural health products, non-prescription drugs and some foods.  Currently these are classified and regulated in Canada by virtue of definitions as to what they do or profess to do.  Health Canada has recently undertaken public consultation on the possibility of moving their regulation to a risk based approach rather than relying upon the traditional definitions.

These consultations surround a discussion on possibly creating three categories, namely low risk, medium risk and high risk products.  Depending on where a product falls within those categories, there may be different standards of approval levels by Health Canada, ingredient disclosures, label requirements, disclaimers, enforcement provisions, etc.

To date, since the inception of the consultation process, Health Canada has received almost 3,600 responses which, not surprisingly, are quite diverse.  On one thing the responses were unanimous, i.e. the need to protect the health and safety of the Canadian consuming public.

Currently, and over the next little while, Health Canada will be conducting webinars and live sessions seeking more input on the various aspects of what might be desirable in such a system and where weaknesses may lie.  Ultimatley they will provide more information on the direction they may wish to go, the timing and process to accomplish this.  The consultations are extensive and are designed to also assist Health Canada in answering questions being posed to it as to what criteria will be used in qualifying a product for a certain category and how any new processes and procedures would be implemented by them.

As Canada’s current regulatory system is over 60 years old, albeit with a far more recent regulatory scheme introduced for natural health products and traditional medicines, it is about time that modernization occurred. We are keeping our fingers crossed that the introduction of a new regime for the regulation of self care products will result in a more fair and consistent treatment of products representing the same level of risk and will also result in a wider variety of products being available at a lower cost.

We will keep our eye on this process and we will do additional posts on it as developments occur.

Advertising – Can they really say that?! Advertising self-regulation in Canada – Part 6 and Final

Posted on by Mary G. Griffith

In my penultimate blog (Advertising self-regulation part 5) in this series, I discussed the Appeal process of the Advertiser Dispute Procedure under Advertising Standards Canada (ASC).  In this final blog on ASC’s Advertiser Dispute Procedure I will review the enforcement, timing and cost issues related to filing complaints and suggest where this dispute procedure may fit among the options that are available to challenge advertising in Canada.

Enforcement

If the party with an offending advertisement does not comply with a Panel or Appeal decision, ASC will publish a summary of the outcome of the Dispute Procedure, including identifying the parties to the dispute, the facts and issues in dispute and a description of the advertising in question.  “Publishing” will include posting the information on ASC’s website, informing the media carrying the advertising in question and potentially notifying the Competition Bureau.  If the disputed advertising is being carried in traditional media, that media is likely to pull the advertising.  This may be a significant enforcement threat for an advertiser, depending on the future media plans that it has in place.  If however the advertising is being carried predominantly in digital media, or if the traditional media campaign is in hiatus or at an end, the publication threat may be of minimal effect.  However, despite this being a voluntary rather than legal procedure, there have been no reported instances of non-compliance since 2010.  Prior to that time the details of two disputes were published on ASC’s website.  There have not been any instances where the Competition Bureau has been notified of any non-compliance.

Timing

Relevant timing is set out in the Advertising Dispute Procedure.  Assuming that there are few or no extensions granted, the process can be undertaken quite quickly from start to finish.  However, strategic use of extensions, and the time given for compliance, may allow the defendant advertiser to successfully complete an offending campaign before amendments need to be made or advertising removed.

Costs

The Fee Schedule sets out the various costs associated with each stage of the Dispute Procedure, and the cost is higher for companies that are not members of ASC.  It is by no means an inexpensive alternative, however it is likely less expensive than taking court action.  It should, however, be noted that a complaint to the Competition Bureau may not be a particularly costly alternative either IF the Bureau elects to pursue a matter on its own initiative, either as a result of its own enforcement priorities or in response to a consumer complaint.

Summary

In summary, it should be remembered that the ASC Dispute Procedure is part of a self-regulatory regime where court rules do not apply and where even the rules of natural justice have not been invoked, at least not to our knowledge remembering the confidential nature of such proceedings.  However, while recognizing some of the inherent risks involved, it may prove to be the most time and cost efficient, and practical, option to consider in assessing alternative methods to address complaints about a competitor’s advertising programmes.  Our advertising and marketing lawyers would be happy to discuss this option and any of the other options available to you to deal with competitive advertisements that you feel are not compliant with regulatory or industry standards in Canada.