advertising and marketing

Advertising and marketing are critical components of many business strategies. In an environment of increased enforcement activity and record fines for misleading advertising, compliance with the many complex and multi-jurisdiction laws, regulations and codes that regulate advertising and marketing is more important than ever.

As a recognized leader internationally in the area of Canadian competition law, McMillan supports the competitive strategies of a wide range of clients by ensuring their compliance with the laws that regulate advertising and marketing. Whether advising on the work of advertising agencies, promotional and marketing firms, or helping with the specialized marketing needs of consumer products companies and financial institutions, we balance business needs and regulatory compliance.

Clients and Expertise

Our advertising and marketing clients operate in a wide range of business sectors, including agricultural, automotive, food and beverage, consumer credit, banking and other financial services, cosmetics, consumer goods, drugs, education, gaming, media and entertainment, electronics, publishing, medical devices, retail, textiles and telecommunications. Our advertising and marketing lawyers have diverse backgrounds in areas such as music, business, film and publishing. They include a former senior counsel to the Competition Bureau and the author of a leading publication on Canadian advertising and marketing law.

Main Areas of Service

Advertising Review

McMillan's advertising and marketing lawyers help businesses and advertising agencies structure their print and broadcast advertising and promotional strategies to minimize the risk and defend against challenges by government authorities or competitors.

We have significant experience in reviewing advertising copy and are familiar with the short lead-time typically available to complete such reviews. Our knowledge of regulatory and industry standards helps clients avoid the risk of fines, litigation or other liability when making performance or price claims, or taking on a competitor in direct comparative advertising.

We also have experience securing publicity and personality rights for use in advertisements and ensuring proper use of endorsements and testimonials in advertisements.

Intellectual Property Protection

We provide advice on competitive marketing issues related to the maintenance, use and protection of such intellectual property as trade-mark rights, copyright, patents and other form of intellectual assets and confidential information. McMillan has one of Canada's largest intellectual property practices and we draw on this expertise in competition claims that involve website issues and online promotions. 

Privacy

We regularly advise on how to comply with federal and provincial privacy laws, regulations and industry codes, develop privacy policies, set up privacy programs, and conduct privacy audits.

Consumer Products and Protection

McMillan provides advice on all aspects of the production, distribution and retail sale of consumer products. We have advised product manufacturers including some of the world's premier food and household product brands, as well as producers of everything from household appliances to smart phones to computer games.

Our work also encompasses the specialized standards of the federal Food and Drugs Act and Regulations and Health Canada's guidelines regarding the compliance, labelling and advertising of food, prescription and non-prescription drugs, medical devices, and cosmetics. We assist with obtaining regulatory approvals and advertising clearances, as well as responding to regulatory and competitor claims of non-compliance.

We also have a deep and broad understanding of consumer protection law issues, from cost of credit advertising to ensuring consumer contracts meet the regulatory requirements.

Marketing, Contests and Promotions

We help clients structure their print, broadcast, internet and social networking advertising and promotional strategies to minimize the risk of and defend against challenges by government authorities or competitors. Our proactive counsel encompasses the full range of promotional issues that both large and smaller advertisers face. Specifically, we have expertise advising on:

• issues relating to word-of-mouth marketing and referral fee marketing programs
• direct mail, telemarketing, internet and multi-level marketing plans
• cross-promotions, coupons and trading stamps
• promotional contests, including those conducted on-line
• issues relating to social media platforms such as Facebook® and Twitter®
• ordinary price claims and substantiating performance claims
• drafting, negotiating and reviewing joint marketing, sponsorship, distribution and co-packaging agreements

Challenging Misleading Claims

Our lawyers aggressively challenge unfair or inaccurate comparative claims in advertising by our clients' competitors. We have appeared frequently as counsel and as panel members in Advertising Standards Canada – Trade Dispute Procedure hearings, have defended criminal misleading advertising charges, have succeeded in resolving such inquiries at the investigative stage and have negotiated Alternate Case Resolutions in numerous matters.

Packaging & Labelling

We help manufacturing and distribution clients meet all applicable disclosure requirements (including bilingual compliance) in Canada's complex regime of statutory and regulatory rules governing how products are packaged and labelled.

Compliance Programs

We have experience developing in-house compliance programs to ensure advertisements and promotions meet advertising laws and industry codes and have provided seminars to marketing departments and advertising agencies of our clients. 

Industry Involvement


    

McMillan lawyers play an active role in the advertising and marketing industry.  McMillan is a proud member of leading industry organizations, including the Canadian Marketing Association, Advertising Standards Canada, the Association of Canadian Advertisers and the Promotion Marketing Association. Collectively, our lawyers have served for over a decade on the board of directors of the National Advertising Benevolent Society of Canada (NABS).

Recognition

Our lawyers are recognized as leading practitioners in advertising and marketing law by such major legal directories and publishers as

• Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada
• The Canadian Legal Lexpert Directory
• Best Lawyers in Canada
• Chambers and Partners' Global Guide to the World's Leading Lawyers
• International Who's Who of Business Lawyers

Our lawyers are co-authors and contributors to Canadian Advertising and Marketing Law, the widely recognized four-volume service published by Carswell that is the leading Canadian reference textbook in this area of law. We also edit and write many of the chapters on advertising & marketing in Fundamentals of Canadian Competition Law, the chapter on "Advertising" in O'Brien's Encyclopedia of Forms and the advertising & marketing chapter in Canadian Corporate Counsel Guide, all published by Canada Law Book.

Upcoming Conferences

International Association of Privacy Professionals - Canada Privacy Symposium 2011, May 4-6 2011, Ottawa, David Young and Corinne Brule (Panel Members)

Articles

Our lawyers have written over 200 articles on various advertising and marketing law subjects. We are in the process of updating and consolidating the articles written by our lawyers before the combination of McMillan and Lang Michener. A new full list of downloadable articles will soon be available. In the meantime, listed below are some of these articles.

March 2012 ring the bells client alert

March 2012 awarding costs under section 36 of the Competition Act: 321665 Alberta Ltd. v. ExxonMobil Canada Ltd. competition bulletin

March 2012 your contest may not be a winner McMillan Competition and Antitrust Bulletin/Lexology

October 2011 anti-spam draft regulations provide guidance privacy bulletin

October 2011 Canadian Competition Bureau releases revised merger enforcement guidelines competition bulletin

June 2011 'Canada' Chapter in The International Comparative Legal Guide to Pharmaceutical Advertising 2011 Published by Global Legal Group

May 2011 Canada's anti-spam legislation ("CASL") – advance preparation is needed now privacy bulletin

March 15, 2011 tracking changes in the law and best practices for behavioural advertising1 advertising & marketing bulletin

January 2011 Misleading Advertising: What's New at the Bureau and Elsewhere 2009 – 2011 Presentation, and Canada's Environmental Marketing Rules Paper, 17th Annual Advertising & Marketing Law Conference, Canadian Institute, January 20-21, 2011

January 2011 UNDER AGE & THE DIGITAL AGE: The Law & Best Practices when Marketing to Minors Online in Canada Paper & Presentation, Canadian Institute's 17thAnnual Advertising & Marketing Law Conference, Toronto, January 20, 2011

June 2010 Quebec Introduces Gift Card Legislation: Part of the modernization of Quebec's Consumer Protection Act Consumer Law Bulletin

May 2010 Payment Card Networks Adopt Voluntary Code of Conduct Advertising and Marketing Bulletin

May 2010 Amendments to Québec's Consumer Protection Act: A Brief Synopsis of the Upcoming Changes Consumer Law Bulletin

April 2010 The Law and Practice of Advertising & Marketing Financial Products: Credit Cards, Loans, Mortgages and Lines of Credit The Canadian Institute's Conference on Advertising & Marketing Law for Financial Institutions, Toronto

March 2010 Quebec Company Sentenced to pay 2 Million Dollars in Punitive Damages Consumer Law Bulletin

January 2010 When is the Price Right? Recent Developments in Price Advertising Law The Canadian Institute's 16th Annual Advertising & Marketing Conference, Toronto

January 2010 Is Your Business Ready for the Latest Changes to Canada's Competition Act? Association of Corporate Counsel (ACC) Seminar, Montreal

September 2009 Waving the Flag in Product Promotions: Competition Bureau Revamps Meaning of 'Made in Canada' and 'Product of Canada' Claims Advertising and Marketing Bulletin

August 2009 Canadian Contest Law and Practice The Canadian Marketing Association's 1st Summer School

June 2009 The Real Costs of the Proposed New Canadian Credit Card Regulations Advertising and Marketing Bulletin

May 2009 Truth in Consumer Rebate Programs Advertising & Marketing Bulletin

April 2009 The Increasingly Complex Regulation of the Simple Gift Card Advertising and Marketing Bulletin

February 2009 Bigger Penalties and Tighter Rules - How changes to Competition Act will affect Canadian advertisers and marketers Advertising & Marketing Bulletin

January 2009 Law 2.0: The New Legal Implications of Web-based Advertising and Marketing The Canadian Institute's 15th Annual Advertising and Marketing Law Conference

September 2008 Put Down that Phone! Canada's National Do Not Call List Comes into Effect Advertising and Marketing Bulletin

July 2008 The International Comparative Legal Guide to Pharmaceutical Advertising 2008 Published by Global Legal Group

June 2008 An Inconvenient Rule: Change Your Compliance Climate Advertising and Marketing Bulletin

April 2008 Too Good to be True? Health Claims in Advertising Advertising and Marketing Bulletin

January 2008 Mine's Better than Yours: Managing Legal Considerations in Comparative Advertising Campaigns The Canadian Institute's 14th Annual Advertising & Marketing Law Conference

December 2007 Refer with Care – Legal Considerations for Referral Marketing Programs Advertising and Marketing Bulletin

November 2007 Hemp or Hype – The Rules on Textile Labelling in Canada Advertising and Marketing Bulletin

October 2007 Data/Privacy Breaches on the Rise – Is Your Business Prepared? Advertising and Marketing Bulletin

August 2007 Ambush Marketing and The Olympic and Paralympic Marks Act: What this means for businesses and Olympic marketing Advertising and Marketing Bulletin

July 2007 Tobacco Advertising: Supreme Court Ashes Manufacturers' Appeal Advertising and Marketing Bulletin

September 2006 Keeping Your Product Placements Legal Advertising and Marketing Bulletin

August 2006 Stealth Marketing: To Disclose or Not to Disclose - That is the (Legal) Question Advertising and Marketing Bulletin

July 2006 The New Face of Consumer Protection Law in Ontario: One Year Later Advertising and Marketing Update

June 2006 Cheetah and Hare: Compare With Care Advertising and Marketing Bulletin

May 2006 The Way of the Road - Steering Through Canada's Car Ad Laws Advertising and Marketing Bulletin

November 2005 Pharmaceutical Advertising in Canada 8th Annual Insight Advertising & Marketing Conference