The UK government recently published a series of advertisements aimed at encouraging climate change awareness, including one retelling of a famous nursery rhyme with amended wording:
Jack and Jill went up the hill to fetch a pail of water. There was none, as extreme weather due to climate change had caused a drought.
An accompanying picture depicts a perplexed Jack examining an empty water pail and includes a statement: “extreme weather conditions such as flooding, heat waves and storms will become more frequent & intense.” The Advertising Standards Authority, in response to readers’ complaints, banned the advertisements on the basis that the environmental claims were exaggerated, distressing and misleading.
Though the UK government’s opinions may be?extreme, there is no question that a concern for the environment is at the forefront of public interest and political agendas. It’s unsurprising that companies are rushing to label or advertise products that claim to be green or environmentally friendly, and many of these claims have been criticized as being vague and misleading. In fact, a North American survey conducted by TerraChoice Environmental Marketing concluded that, of the identified 1,018 consumer products in the survey bearing 1,753 environmental claims, all but one made claims that were false or could mislead audiences.
Environmental claims, as well as other types of claims such as health or drug claims, may sometimes form part or all of a trademark. These marks may be deemed registrable by the Canadian Trademarks Office while containing a term or word that is prohibited by other Acts such as the Competition Act or the Consumer Packaging and Labelling Act. These Acts apply regardless of the field of use. For example, the Competition Act prohibits advertisers from making representations in advertising that are “false or misleading in a material respect.” Under certain circumstances, in serious cases of false or misleading advertising, the individual or company responsible may be subject to criminal prosecution.
Other legislation or guidelines, such as the Food and Drugs Act and the Textile Labelling Act, may also apply to the specific field of use. In the environmental context, a guide titled “Environmental Claims: A Guide for Industry and Advertisers” was published in June 2008 by the Competition Bureau of Canada in partnership with the Canadian Standards Association to address concerns relating to misleading or confusing environmental claims.
The guide discourages the use of vague claims such as environmentally friendly, ecological (eco), green, environmentally safe, earth smart, ozone friendly, nature’s friend, forest friendly, etc., unless the claim is accompanied by another supporting statement. For example, according to the guide, a phrase such as “This product has replaced its aerosol ingredients with an alternative that does less harm to the ozone layer” is preferred over a term such as “ozone-friendly.” In addition, if the claim makes representations as to the performance or efficacy of a product, the claim should be supported by proper testing that is made available upon request.
While the guide is not a Regulation and therefore does not have the force of law, the Competition Bureau uses the guide as a standard for evaluating whether self-declared environmental claims are false or misleading.
In addition to the environmental industry, the food industry has been criticized for marketing products with unsubstantiated health benefit claims. Health claims are governed by the Food and Drugs Act and Regulations, and violations of the Act or its Regulations will be investigated by Health Canada and, in some circumstances, the Competition Bureau. Under the Food and Drugs Act, food cannot be labelled, packaged or advertised, including through the use of a trademark, “in a manner that is false, misleading or deceptive or likely to create an erroneous impression regarding its character, quality, value, quantity, compo-sition, merit or safety.”
Health Canada has also published a Guide to Food Labelling and Advertising. The guide notes that “Health claims may be stated explicitly with words, or implied through symbols, graphics, logos or other means such as a name, trade mark or seal of approval.” Therefore, both word trademarks and trademarks comprised only of a design element are subject to the Act if they imply a particular health claim.
Examples of health claims and the limitations on marketing them are provided in the guide and the Food and Drug Regulations (see for example Table 1 following B.01.513 of the Regulations). A few of these numerous examples are provided below:
Low protein – these claims are specifically set out in technical terms in the Regulations; the claim must fulfill the condition that the food contains no more than one gram of protein per 100 grams of the food.
Carbohydrates – as a result of the popularity of low-carbohydrate diets, an explosion of carbohydrate claims began appearing on food?products in Canada. The Canadian Food Inspection Agency responded by announcing that carbohydrate claims such as low carbohydrate, reduced carbohydrates, or source of carbohydrates on food products are generally not permitted.
Fresh – the word fresh can be used to describe the nature, age, flavour, texture, appearance and smell of a product, provided the term is not misleading. For example, according to the guide, it would be considered misleading to label or advertise fruits and vegetables as orchard fresh if the fruits or vegetables were held for months in controlled-atmosphere storage. The word fresh can also be used as a trademark, provided it is clear to the consumer that fresh is not a characteristic of the product but instead represents a brand.
Organic – The Agriculture and Agri-Food Canada website indicates that annual retail sales of certified organic products in Canada are more than $1 billion. As of 2009, the Organic Products Regulations prohibit the labelling of a product as organic unless it has?been certified to the Canadian Organic Standards for agricultural products. The Regulations specifically indicate that no person shall label or advertise a product as organic (or use similar wording) unless the product is a single-ingredient organic product or a multi-ingredient organic product that contains at least 95% organic content. It is noteworthy that the Regulations apply only to?products travelling across provincial or international borders. As a result, uncertified organic claims may still be observed at small venues such as farmers’ markets.
Given that trademarks are often interpreted as a type of advertising or labelling claim, it is important to be familiar with the relevant Acts, Regulations and guidelines that apply to the trademark owner’s field of use. The underlying question with respect to the applicable Acts is typically whether the trademark appearing on the label or advertisement could be considered misleading. Prior to filing a trademark application or commencing a marketing campaign, it is therefore prudent to question whether a trademark or portions thereof could be viewed as misleading to Canadian consumers.
Heather E. Robertson, Toronto
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