Marketing & Advertising

MARKETING & ADVERTISING

With a myriad of potential ways to promote products and services, the complex web of Canadian advertising laws, regulations and codes that govern marketing can be a minefield. Governments and regulators are keen to protect consumers from perceived misleading marketing messages—whether purposeful or not—and non-compliance or adverse judgements can result in significant fines and reputational damage. Digital advertising and marketing laws related to privacy protection, telemarketing and spam email communication are also increasingly prescriptive, and compliance is a business imperative.

McMillan’s Competition and Antitrust Group is a leader in advertising and marketing law. We help clients navigate the complex world of regulations that govern today’s marketing environment. It is a leader in dispute advertising. We help clients balance their desire to grow their businesses with their need to comply with the law. Our lawyers work with clients in a wide range of business sectors, including agriculture, automotive, consumer products, education, financial services, gaming, media and entertainment, medical devices, retail, technology, and telecommunications. Our internet advertising and marketing lawyers help clients balance their desire to grow their businesses with their need to comply with the law.

In addition to McMillan lawyers who specialize in Canadian advertising laws, our team includes legal subject matter experts in all trademark, copyright, and intellectual property matters connected to advertising.

McMillan’s advertising and marketing lawyers help our commercial clients lead by:

Structuring print, broadcast, internet and social network marketing and promotional strategies
Defending against criminal proceedings and/or class action lawsuits
Advising on the lawful use of pricing and distribution practices as a competitive tool
Advising on the maintenance, use and protection of intellectual property
Providing advice regarding privacy law issues including compliance, setting up privacy policies and programs, and conducting privacy audits
Assisting with telemarketing and email communication compliance
Advising on the production, distribution and retail sale of consumer products
Assisting with specialized standards governing the compliance, labelling and advertising of food, drugs, medical devices, and cosmetics
Helping meet disclosure and multi-lingual requirements that govern how products are packaged and labelled
Developing in-house compliance programs to ensure advertisements and promotions meet relevant laws and industry codes
Defending against challenges by government authorities or competitors
Advising as counsel before Advertising Standards Canada – defending or challenging competitive claims

Primary Contacts

View All Contacts

Daniel G. Edmondstone

Partner, Marketing & Advertising

Toronto

dan.edmondstone@mcmillan.ca Phone

416.307.4121

Janine MacNeil

Partner, Advertising & Marketing

Toronto

janine.macneil@mcmillan.ca Phone

416.307.4124

News

Insights (69 Posts)

Competition Bureau Challenges Alleged Drip Pricing by Cineplex

The Competition Bureau commenced a proceeding against Cineplex for allegedly engaging in misleading advertising in the form of "drip pricing".

Jun 2, 2023

CSA Seeks Comments on Two New Approaches to Diversity Disclosure

The Canadian Securities Administrators is seeking comments on the proposed amendments to the corporate governance disclosure rules and policies (Form 58-101F1)

May 10, 2023

AI Regulatory Roundup – International Developments in AI Law and Policy

An overview of recent Canadian and international developments related to the regulation of artificial intelligence technologies.

May 2, 2023

Trademark of Foreign Owner Invalidated on the Basis of Bad Faith

Awareness of a senior rights holder’s trademark and its prior use of such trademark in Canada is relevant to the assessment of bad faith.

Mar 22, 2023

More Bang for Your Buck: OSC’s updated fee structure to take effect April 3, 2023

Amendments to OSC Rule 13-502 Fees, OSC Rule 13-503 (Commodity Futures Act) Fees and their related companion policies coming into force April 3, 2023.

Mar 8, 2023

Display of Trademark on Stickers Affixed to Goods Constitutes Trademark Use

Displaying a retailer’s trademark on stickers affixed to goods already branded with a third party’s mark constitutes "use" of a trademark in Canada.

Jan 31, 2023

Reporting Issuers Need to be Factual and Balanced, Striving for Accurate and Comprehensive ESG reporting

The CSA cautions issuers against overly promotional "greenwashing" language in continuous disclosure in its biennial report - Staff Notice 51-364.

Nov 30, 2022

Gates are Open for Consultation on Round Two of Competition Act Amendments

The Canadian government is consulting on proposed amendments to the Competition Act.

Nov 21, 2022

Green or Grey: Regulators Target Greenwashing, Misleading Environmental, Social and Governance (ESG) Claims

An overview of risks and best practices for companies in relation to environmental, social and governance (“ESG”) claims and disclosure.

Oct 19, 2022

Can they really do that? Understanding the limits of governmental permitting and compliance powers

While every company strives to achieve constructive relations with regulators, sometimes this is not enough. In such cases, understanding the rules that apply to regulators and the limits of their powers can be essential to levelling the playing field.

Details

Wednesday, November 9, 2022

Certified Today, Dismissed Tomorrow: Ontario Court Dismisses Automotive Class Action after Successful Certification

An Ontario court has dismissed a proposed class action against an automobile manufacturer on the merits for alleged false claims after certification.

Jun 29, 2022

Couldn’t Scrape By: BC Court Rejects Certification of Class Action against Facebook

BC Court dismisses certification application for class action against Facebook for allegedly scraping user data from their messenger app.

Feb 17, 2022

Mandatory COVID-19 Vaccination Policy Upheld

An Ontario arbitrator upheld an employer's vaccine mandate for both a site where a 3rd party obligation existed and a related site with no such obligation.

Jan 12, 2022

Ontario Arbitrators Continue to Uphold Terminations of Employees who Breach COVID-19 Safety Protocols

A recent decision by an Ontario arbitrator further affirmed the notion that dishonesty during COVID screening protocols by an employee can lead to termination.

Jan 12, 2022

Canada Partners with the European Commission to Examine Use of Digital Credentials

Increased standards for digital credentials improve privacy and global functionality - but what does this mean for businesses who use them?

Dec 7, 2021

Risks of Anonymized and Aggregated Data

This article discusses how the anonymized and aggregated data poses risks to businesses, and how to stay compliant with the applicable privacy requirements.

Dec 1, 2021

Protection of Virtual Goods Through Tokenized Technology

Real world brands are increasingly looking to NFTs and virtual online presences as the next frontier to market their products.

Nov 17, 2021

Mandatory Vaccination Policy: “Reasonable, Enforceable”

A labour arbitrator upheld an employer’s mandatory vaccination policy, finding the policy to be reasonable and enforceable.

Nov 11, 2021

Certification Denied: An Important Win for Competition Class Action Defendants

Certification denied in DRAM class action.

Nov 10, 2021

A Tale of [NORSTEEL in] Two Cities

The recent decision in Norsteel Building Systems Ltd. v. Toti Holdings Inc. highlights the importance of trademark clearance searching for businesses.

Nov 10, 2021

Privacy Commissioner Releases More Guidance for Video Teleconferencing Companies

Video teleconferencing companies face unique cybersecurity and data privacy risks. The OPC has new guidance on how these companies can best address them.

Nov 3, 2021

Antitrust Reform: Canada Too!

James Musgrove and Sarah Stirling-Moffet talk Competition law reform in Canada after the Commissioner’s CBA speech - more money, more power!

Oct 21, 2021

Changes on the Menu – 2nd Course: Canadian Food Inspection Agency Updates Implementation Plan for Food Labelling Rules

This Bulletin covers the Canadian Food Inspection Agency's Implementation Plan for Updates to Food Labelling Rules.

Sep 29, 2021

Recent changes for farmers’ market vendors in Alberta / Introducing the “Made in Alberta, by Albertans” label

This Bulletin covers changes to rules for farmers' markets and their vendors in Alberta, plus the rollout of the "Made in Alberta, by Albertans" logo and label.

Aug 11, 2021

Changes on the Menu: Canadian Food Inspection Agency Publishes Consultation Report on Proposed Guidelines for Simulated Meat and Poultry Products

This Bulletin discusses feedback on the CFIA’s proposed new guidelines for plant-based meat and poultry, what could be changing and what the CFIA is doing next.

Jul 20, 2021

Canadian Privacy Commissioners Issue Joint Guidance on Vaccine Passports

Commissioners warn that privacy considerations must be “front and centre” as organizations develop and implement vaccine passports in the coming months

May 25, 2021

BILL 96 – Top 10 Impacts of the Revised Charter of the French Language on your Business and When to Expect Implementation of Such Revisions

Changes to Québec’s language laws are coming. Here is a top ten list of potential impacts, and the likely timeline and process for adoption.

May 19, 2021

Advertising in the Virtual World

Join members of the Marketing and Advertising Group on Thursday, June 17, 2021 at 12 pm ET as we discuss current trends in marketing and advertising in an increasingly virtual world, and during the ongoing global pandemic.

Details

June 17, 2021 - 12:00 pm to 1:30 pm ET

Competition Bureau Grounds FlightHub’s Misleading Advertising

On February 24, 2021, the Competition Bureau concluded its investigation into alleged misleading advertising by FlightHub by way of a consent agreement.

Mar 3, 2021

Big Brother’s Access Limited – Canadian Privacy Commissioners Rule Clearview AI’s Facial Recognition Tool in Breach of Canadian Privacy Laws

Privacy Commissioners find Clearview AI's use of facial recognition software on images it scraped from the Internet to be in breach of privacy laws.

Feb 17, 2021

B.C. Technology Sector Makes the Grade – But Not Yet Top of the Class

In November 2020, KPMG released the B.C Tech Report Card 2020. The Report Card outlined the current state of the British Columbia technology sector.

Dec 2, 2020

The Intersection between Drop-Shipping and Patent Infringement

The drop-shipping business model is picking up steam in the online world. But is it immune from the reaches of patent law? Find out in this bulletin.

Nov 4, 2020

Canada’s New Cybersecurity Certification Goes Live

The federal government has launched a voluntary CyberSecure program to help small and medium-sized organizations protect against cybersecurity threats

Oct 13, 2020

Mandatory Indoor Face Coverings: What Ontario Employers Need to Know

Oct 6, 2020

COVID-19 Realities Push Ontario Government to Launch Public Consultation to Improve the Province’s Privacy Laws

The Ontario government launched public consultations to guide their modernization of private-sector privacy laws within the province.

Aug 19, 2020

Ontario Amends Employment Standards Legislation in Response to COVID-19

Ontario passes new protected leave of absence for employees impacted by COVID-19, and suggests COVID-19
cases should be reported as occupational illnesses.

Aug 5, 2020

Federal Court Defends CASL, Says Prohibition on Spam is Constitutional

he FCA ruled that CASL's provisions relating to the regulation of commercial electronic messages are constitutional, despite challenge from CompuFinder

Jul 1, 2020

Privacy Penalties – Canadian Competition Bureau Wades Into Privacy Enforcement

Organizations operating in Canada are advised to immediately review their privacy-related policies and marketing to avoid false or misleading representations

May 26, 2020

COVID-19: Alberta Government Announces List of Essential Services

Alberta's Government has published lists of essential services and non-essential places of business not permitted to
offer or provide services to the public.

Mar 29, 2020

What Are “Moral Damages” Worth? Quebec Court of Appeal Limits when Consumers’ Frustration Constitutes a Recoverable Harm

The Quebec Court of Appeal's decision in Meubles Léon v. Options Consommateurs sheds light on when a "moral damage" is recoverable.

Mar 2, 2020

How Should AI be Regulated in Canada? Speak now, or forever hold your peace!

Many organizations recognize the potential benefits that artificial intelligence can bring to their business. Canadian regulations coming sooner than later.

Feb 24, 2020

Under the Influence: The Canadian Competition Bureau’s Stand on Misleading Product Endorsements

The Competition Bureau has sent letters to advertisers and advertising agencies warning them to ensure that their Influencer advertising complies with the law.

Dec 30, 2019

Ontario Court Suggests Terminated Salespeople are Fish Out of Water

Recent Ontario decision calls into question prior holdings about the transferability of salespersons' skills.

Dec 16, 2019

FlightHub Experiences Some Turbulence Courtesy of the Competition Bureau

The Competition Bureau's announcement of its investigation into FlightHub and the registration of a "temporary consent agreement" is analyzed in detail.

Nov 1, 2019

The Next Phase of Canadian Cannabis: What to Expect in 2019 and Beyond

On June 14, 2019, Health Canada unveiled its Final Regulations for New Cannabis Products

Jun 21, 2019

TOP TWELVE THINGS TO KNOW – New Canadian Trademarks Act June 17, 2019

On June 17, 2019 major changes to Canada’s Trademarks Act will come into force.

Jun 4, 2019

Proposed Digital Charter Could Bring Sweeping Changes to Canadian Privacy Laws

On May 21, 2019, the Canadian federal government released a proposed Digital Charter

May 23, 2019

New Ad Standards Advertising Dispute Procedure

Advertising Standards Canada, an industry body commonly known as Ad Standards, has, for many decades, run both consumer complaint and competitor dispute processes with respect to advertising that may run afoul of its Canadian Code of Advertising Conduct.

May 20, 2019

Trademark “Use” in the Normal Course of Trade: Revisited

The recent Federal Court of Appeal decision in Cosmetic Warriors Limited v Riches, McKenzie & Herbert LLP [1] ("Cosmetic Warriors") revisits what constitutes “use” of a trademark in the normal course of trade.

May 14, 2019

A Roundtable with the Commissioner – Thoughts on effective engagement with the Competition Bureau

Join Commissioner of Competition John Pecman and senior officials from the Competition Bureau for an "insider" discussion of the most effective ways to make your case to the Competition Bureau.

Details

May 3, 2018 - 4:15 PM to 6:00 PM

Bud Branders (still) Beware: Your Guide for the Cannabis Packaging and Labeling Requirements

June 2018, Before Cannabis products hit the shelves, producers will need to comb through Regulations to ensure they remain onside of mandated branding practices

Apr 2, 2018

Bud Branders Beware: Proposed Cannabis Packaging and Labeling Requirements Don’t Leave Room for Imagination

Bill C-45 provides summary of feedback received during Health Canada's 60-day public consultation period on its proposed regulatory approach and also provides clear guidance on packaging and labeling

Apr 2, 2018

What’s the use? Federal Court revisits the requirements for use of a trademark in association with goods

Recent Federal Court decision in Cosmetic Warriors Limited v Riches revisits statutory requirements for use of trademark in association with goods.

Feb 6, 2018

Seller Beware: The Dangers of Sales Language

Winning a bid dangerous when materials use exaggerated hyperbolic language and contain injudicious claims to performance suitability reliability and functionality of goods or services offered

Jan 19, 2018

The Top 10 Trademark Cases of 2017

McMillan LLP's Intellectual Property group welcomes readers into 2018. Our gift is a top 10 list of trademark cases from Canadian case law from 2017

Jan 15, 2018

Proposed Changes to the Competition Bureau’s Immunity Program Will Undermine Effective Cartel Enforcement in Canada – Comments of McMillan LLP on the Consultation Draft dated October 26, 2017

Several proposed revisions to Immunity Program under the Competition Act will have unintended but serious consequence of decreasing applications for immunity

Jan 1, 2018