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Advertising – Can they really say that?! Advertising self-regulation in Canada – Part 3

Although advertisements in five regulated categories (see my last blog) need to be pre-cleared before they can be aired in Canada, you may still see ads in non-broadcast media (such as print, internet or out-of-home), in other categories, or even in categories that have received preclearance, that you feel are not appropriate in some way. It is important to remember that pre-clearance of an ad is done against the relevant regulatory framework. This is not necessarily the same as what is covered by the clauses of the Canadian Code of Advertising Standards (the “Code”). In fact, even if an advertisement is given pre-clearance it may be given a “Code warning” indicating that it may attract complaints under the Code.

So as an individual consumer, how and to whom do you complain if you see an ad that you feel is inaccurate, or inappropriate in some way?

While complaints about advertising can be made to the Competition Bureau, or under a number of other statutes, this blog will deal only with the self-regulatory avenue available to a consumer for advertisements that they feel contravene the Code. The process of submitting a complaint to Advertising Standards Canada (ASC) is very straightforward and can be completed on-line, by letter or by fax. ASC initially evaluates complaints under the provisions of the Code, and if it determines that there may be a Code infraction then the advertiser will be notified.

In the case of complaints relating to clauses 10 (Safety) or 19 (Unacceptable Depictions and Portrayals) the advertiser is asked to respond directly to the complainant (if they have agreed to be identified) or through ASC (if the complainant wants to remain anonymous). If the complaint is not satisfied with the response, and ASC believes that there is still an issue under the Code, then the complaint will be referred to the Standards Council (the “Council”) which is a volunteer body comprised of members of industry and the public.

In the case of complaints regarding any other Code clauses, the advertiser will be asked to respond directly to ASC and the complaint will be adjudicated by the Council. Council decisions are by a majority vote. Both the advertiser and the complainant will be notified of the Council’s decision. If it is determined that a violation of the Code has occurred it will be requested that the advertiser appropriately amend or remove the advertising without unreasonable delay.

Both the complainant and the advertiser have seven working days to appeal the decision, however the advertiser must undertake to withdraw the advertisement in question until the appeal decision is rendered.

If an advertiser fails to voluntarily comply with the decision of Council, ASC will advise exhibiting media of the advertiser’s failure to co-operate and request media’s support in no longer exhibiting the advertising in question; and may make public the fact that both the advertiser and specific advertisement have been found to violate the Code.

Unlike ASC’s complaint procedure between advertisers which is confidential, consumer complaints under the Code are made public and ASC regularly publishes reports on consumers’ complaints to ASC about advertising.

The report has two sections: the first provides details of the complaints that were upheld by the Council and identifies the advertiser and specific advertisement involved; the second summarizes, without naming the advertiser, consumer complaints upheld by Council about advertisements dealt with appropriately by the advertiser. This would include advertisements that, after notification by ASC of a complaint, were amended or withdrawn before the matter was sent to Council for review and decision.

These reports can help inform an advertiser of both ASC’s and the Council’s interpretation of Code. However, as always it is good practice for an advertiser, or their agency, to have any potential creative reviewed by a knowledgeable advertising and marketing lawyer before it is produced in order to ensure that it is compliant with all relevant legal requirements, and the Code.

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