Engaging Quebec Consumers

1. Engaging Quebec Consumers Melissa Tehrani LEXPERT Social Media Law Conference June 2, 2014

2. Engaging Quebec Consumers Things to consider: • Tips for running compliant contests in Quebec • From Tweets to YouTube videos: How to stay on-side Quebec’s language laws when using social media • Use of testimonials, price representations and advertising to children • Tales from the Régie trenches

3. Quebec Contest Rules

4. Basic Contest Rules- The Régie Régie– In or Out? “publicity contest ”: a contest, a lottery scheme, a game, a plan or an operation which results in the awarding of a prize, carried on for the object of promoting the commercial interests of the person for whom it is carried on

5. Basic Contest Rules How Do Québec Contests Differ from the Rest of Canada? • A contest open to Québecresidents usually must be filedwith the Régie desalcools, des courseset des jeux (“Régie”) • Including Québecresidents will impactyour contest in several ways

6. Basic Contest Rules Impact of Including Québec • All materials must be created in French • The contest must be filed with the Régieprior to launch; sliding scale to determine, based on prize values, whether you must file, timing and what has to be submitted • You may have to file a security bond with the Régie in an amount which the Régie may determine, to ensure that the advertised prizes are in fact awarded • Pay the requisite duty

7. Basic ContestRules Duty Payable: A person for whom a publicity contest is carried on in which the total value of the prizes offered exceeds $100 must pay to the Régie the following duty: a)10% of the value of a prize offered to contestants from Québec exclusively; b) 3% of the value of a prize offered to a group of contestants from Canada exclusively, when that group includes contestants from Québec; c) 0.5% of the value of a prize offered to any other group of contestants including contestants from Québec.

8. Basic ContestRules

9. Basic Contest Rules Québec Contest Rules • The contest rules must include: • the number and value of the prizes and a detailed description of each • the place, date and precise time the prize winners will be named, e.g., “on February 14, 2012, at 2:00 p.m. in Montréal, Québec, the random draw will take place”

10. Basic Contest Rules Québec Contest Rules • The place, date and deadline for claiming prizes • e.g., “deadline for claiming prizes is midnight, June 1, 2012 at the address listed in rule #1” • The nature of the skill-testing requirements • e.g., “mathematical skill-testing question” • The Régie clause: “Any litigation respecting the conduct or organization of a publicity contest may be submitted to the Régie des alcools, des courses et des jeux for a ruling. Any litigation respecting the awarding of a prize may be submitted to the Régie only for the purpose of helping the parties reach a settlement.”

11. Basic Contest Rules- Disclosure Advertising : • The advertisements relating to the contest: • must not suggest that non-participants could be winners or indicate that a person may win a prize when all participants receive the same prize “You could win a free health club membership for a month” • must state the number, value and description of all prizes offered, or state that only one prize is available if applicable • specify the smallest andlargest value of the prizes

12. Basic Contest Rules- Disclosure The Competition Act: What must be disclosed? • Any material facts that would affect the chance of winning • e.g. odds in a seeded contest • e.g. the total number of speciallymarked packages containing entry forms • Distribution of prizes must not be unduly delayed

13. Basic Contest Rules- Disclosure Mini Rules (some leeway for Radio): • It is not generally possible to disclose all terms of a contest in advertising • No purchase necessary • Skill-testing question required • Odds of winning and factors that affect them (to extent known) • Contest closing date • Number, description and approx. value of prizes • Where the full rules can be obtained No purchase required. To enter, visit the Contest Facebook site at milliondollarbutton.ca beginning on January 3, 2013, at 12:00:01 p.m. Eastern Time (“ET”) and complete and submit your entry form by following the instructions found at the site (“Online Entry”). There is a limit of one (1) Online Entry per person per day during the Contest Period.

14. Basic Contest Rules- Disclosure Approximate Value • “Approximate value” generally means approximate regular market value. • The Bureau takes the view that where this is difficult to estimate, a representative example may be provided. EX: Approximate value of the Online Semi-final Prize is $5,350 based on a Victoria, BC departure. Note: Make sure to get consent for the use of depictions of Canadian coins in advertising from the Royal Canadian Mint, and for paper money from the Bank of Canada!

15. General requirements under the Charter of the French Language

16. Charter of the French Language Text on Products: Every inscription on a product, on its container or on its wrapping, or on a document or object supplied with it must be drafted in French

17. Charter of the French Language Another language may also be used provided that the French version is displayed at least as prominently as every other language Commercial Publications: Catalogues, brochures, folders & similar publications must be in French

18. Charter of the French Language Public signs and posters and commercial advertising must be in French P Can be in another language provided French is “markedly predominant” Commercial Advertising:

19. Charter of the French Language EXCEPTIONS: • Recognized trade-marks do not have to be translated to French, unless the French version of the mark has been registered NB: this is currently being debated! • Inscriptions on a cultural or educational product such as a book, magazine, publication, disk, film or tape • Inscriptions that are permanently engraved, baked, inlaid, embossed, riveted or welded into a product that is from outside of Quebec (unless the information relates to the product’s safety)

20. Charter of the French Language EXCEPTIONS (cont’d): • Commercial publications concerning a convention, conference, fair or exhibition intended solely for a specialized or limited public • Commercial advertising for a convention, conference, fair or exhibition may, during the event, be exclusively in a language other than French • Commercial advertising for an eventintended for an international public or an event in which the majority of participants come from outside Québec, where directly related to the nature and recognized purpose of the event, may be both in French and in another language provided that French appears at least as prominently.

21. Facebook, Twitter & New Media: What you need to comply with Quebec’s language laws

22. New Media Websites and electronic messages are assimilated to “catalogues, brochures, folders & similar publications”  subject to the equal prominence rule

23. New Media • Exceptions: • May send an English-only commercial publication to a natural person who has made a written request to receive such documents in that other language

24. New Media • What about… • Commercial publications concerning: • a cultural or educational product; • concerning a cultural or educational activity; or • promoting a news medium; • may be exclusively in a language other than French provided that: • the content of the cultural or educational product is in that other language; • the activity is held in that other language; or • the news medium publishes or broadcasts in that other language, • as the case may be.

25. New Media @HungerGames @TEDxMontreal

26. Charter of the French Language Potential Consequences: • Fine of $1,500 to $20,000 • Fines are doubled for a subsequent offence • In determining the amount of the fine, judge considers, among other things, the revenues and other benefits derived from the offence, and any damages or socio-economic consequences resulting from the offence • An additional discretionary fine equal to the financial gain the offender realized or derived from the offence may be imposed by the judge • Any person who distributes, sells by retail, offers for sale, or otherwise markets a non-compliant publication or product is guilty of an offence and liable to the fines provided above • Scope of liability for an offence extends to those who, by their actions or omissions, assist a person in committing an offence or advise, encourage or incite a person to commit such an offence

27. Testimonials, price representations and advertising to children

28. Online Testimonials and Social Media • Using testimonials online • The Competition Act requires that all testimonials be the actual testimonial of the person who made it – written confirmation of this should be obtained • The Canadian Code of Advertising Standards provides that: • Testimonials, endorsements or representations of opinion or preference, must reflect the genuine, reasonably current opinion of the individual(s), group or organization making such representations, and must be based upon adequate information about or experience with the product or service being advertised, and must not otherwise be deceptive. • The above considerations also apply to any paid endorsements, such as through paid blog or vlog posts, or through paid mentions by users on Facebook, Twitter, or other social media platforms

29. Online Testimonials and Social Media • Requirement to disclose the connection • The Quebec Consumer Protection Act prohibits falsely, by any means, holding out that a merchant/manufacturer/advertiser is  certified, recommended, sponsored or approved by a third person  or that a third-party recommends, approves, certifies or sponsors certain goods or services. • The Competition Act prohibits false and misleading advertising, and the Competition Bureau interprets this to require that representations do not mislead consumers as to the relationship between the party making the representation and the supplier of the product or service • The Canadian Code of Advertising Standards also prohibits advertising that conceals its commercial intent • Any material connection, such as a benefit received from, or any interest in, an organization or product mentioned in or promoted by a post on a blog or social media should be disclosed

30. Online Testimonials and Social Media • Disclosing the connection • When disclosing the connection between a social media or blog post and a commercial interest, avoid using words like “sponsored by” unless the sponsor simply paid to have their name associated with the post • This wording may be considered misleading if, for example, the “sponsoring” organization wrote the post themselves or had editorial control • Use words that clearly indicate the relationship, such as stating the benefit received and any other material connection • On Facebook and Twitter, there are special “Sponsored Posts” or “Promoted Tweets” offered by the platform and are clearly demarcated as different from regular posts or tweets – don’t use those phrases on those platforms if otherwise providing brand-focused posts • Instead, describe the relationship as clearly as possible • Examples: • “The product under review was supplied without • charge by the manufacturer.” “XYZ Corp. paid for this post/review.” “I am a representative of XYZ Corp.”

31. Price representations Pricing Representations: No merchant, manufacturer or advertiser may, falsely, by any means whatever, indicate a regular price or another reference price for goods or services (s. 225(b) C.P.A.).

32. Price representations Pricing Representations: The “regular price” must be established based on the Time/Volume Test (s. 74.01 (2) Competition Act): • “Volume Test”: A substantial volume of a product was sold at that price or a higher price within a reasonable period of time before or after the making of the representation. • “Time Test”: Product must be offered for sale, in good faith, at that price or a higher price for a substantial period of time recently before or immediately after the making of the representation.

33. Advertising to Children Since 1978, the Quebec Consumer Protection Act has prohibited commercial advertising to children under thirteen years of age According to a study, children between the ages of 3 and 5 years old show an “emerging ability” to use ads to judge which products will be the most “fun” and make them popular – even if they can’t read yet! At the age of 4, the majority of kids are able to recognize hundreds of logos Canadian children between the ages of 2 to12 spend $1,5 billion of their own pocket money each year

34. Advertising to Children The Rule: Commercial advertising directed at children under 13 years old is prohibited in Quebec! Factors to consider when assessing whether an ad is “directed at children”: • Nature and intended purpose of the good advertised • Manner of presenting the advertisement • Time and place it is shown, and • The general impression N.B. The ban also applies to those who design, distribute, publish or broadcast the advertisement.

35. Advertising to Children The OPC’s Guide to the Application of Sections 248 and 249 Consumer Protection Act:

36. Advertising to Children The Exceptions: • Ad appears in a magazine/insert directed at children and meets various conditions (e.g. magazine/insert is for sale and published at least quarterly, ad meets the requirements of section 91 Regulations) • Ad appears in a store window, on a display, container, wrapping or product label and meets the requirements of section 91 Regulations • Ad announces a programme/show directed at kids and the advertisement complies with section 91 Regulations

37. Advertising to Children Notable Cases:

38. @Advertising_Law @Droit_Pub Melissa Tehrani 514-392-9561 melissa.tehrani@gowlings.com