Spirits Canada's Code of Responsible Advertising and Marketing Complaint Procedure ("Complaint Procedure")

How to submit Advertising and Marketing-related Complaints (“Complaints”) for review under Spirits Canada’s Code of Responsible Advertising and Marketing

Who can submit a complaint?

Complaints may be submitted to Ad Standards for review under Spirits Canada’s Code of Responsible Advertising and Marketing (Spirits Canada Code) by consumers, special interest groups, agencies or comparable entities of (Canadian) federal/ provincial/territorial governments, municipalities, and by distilled spirits advertisers. The Spirits Canada Code may be found at: Spirits Canada - Code of Responsible Advertising and Marketing 

Subject of Complaints

The Spirits Canada Code applies to advertising-related activities sponsored by distilled spirits advertisers that promote distilled spirit products in any media, and includes promotional events, product placement, sponsorship, sales material, and packaging and labelling.

As used in this Complaint Procedure the words “advertising” and “advertisement(s)” have the same definition as found in the Canadian Code of Advertising Standards. Under this Complaint Procedure the terms “advertising” and “advertisement(s)” also include marketing and promotional activities of a distilled spirit manufacturer, as well as its current packaging and labelling, but excludes registered trademarks owned by a distilled spirit manufacturer.

Complaints must relate to advertising currently appearing in Canadian media.

How to submit a complaint

Complaints may be submitted online to: spiritscodecomplaints@adstandards.ca. Include your full name, telephone number, complete mailing address and email address.

Identify the advertising and the medium in which the advertising appears:

• For Print Advertisements: identify the name and date of the publication(s) in which you saw the advertisement(s) and include a copy of the advertisement(s).
• For Out-of-home Advertisements, such as outdoor, transit or similar advertisements: identify the date on and exact location at which you saw the advertisement.
• For Broadcast Advertisements: identify the station, time and date on/at which you saw/heard the commercial and provide a brief description of the commercial.
• For Cinema Advertisements: identify the title of the movie, the date of viewing, and the name and location of the movie theatre at which you saw the advertisement and provide a brief description of the advertisement.
• For Internet Advertisements: identify the date of viewing, website, and include a print-out of the advertisement and other applicable web pages (if any).
• For Promotional Activities/Events: identify the date and location of the activity/event and include a description of the activity/event.
• For Packaging and Labelling: include a photograph of the package or label and identify the retail location at which you saw or purchased the product.
• Social Media/Digital Advertising: include a screenshot of the advertisement.

Complaints must allege a contravention of one or more provisions of the Spirits Canada Code and identify or otherwise describe the alleged contravention.

 

How Complaints are Handled by Ad Standards and the Standards Council

Ad Standards carefully considers and responds to all written complaints received by it about advertising that allegedly does not comply with the Spirits Canada Code.

Such complaints are reviewed and adjudicated by the Standards Council (“Council”). This independent body made up of senior industry and public representatives is supported and co-ordinated by, but independent from, Ad Standards.

The critical factor in determining whether an advertisement should be reviewed by Council is not the number of complaints received. The fundamental issue is only whether an advertisement, which is the subject of one or more complaints, appears to Ad Standards to contravene the Spirits Canada Code. Ultimately, that question can only be answered by Council in response to one or more bona fide complaints.

Non-Reviewable Complaints

If, upon review, it appears to Ad Standards or Council that reasonable grounds for the complaint appear to exist, then the complaint will be accepted for processing.

Ad Standards or Council shall decline to accept, or to proceed further with, a complaint, or any part thereof, where it is of the opinion that:

1. the specific advertisement(s) about which the complainant alleges a Spirits Canada Code violation has/have not been sufficiently identified;
2. based on the provisions of the Spirits Canada Code, reasonable grounds for the complaint do not appear to exist;
3. the advertising, or such part of the advertising to which the complaint refers:
   • is, substantially, also the subject of litigation or other legal action then actively undertaken and pursued in Canada; or
   • is under review, or subject to an order, by a Canadian court, or an agent or agency (or some other comparable entity) of the Canadian government, provincial or territorial government; or
   • has been, specifically, approved by an agency (or some other comparable entity) of the Canadian government, provincial or territorial government; or that
4. such advertising is not within the purview of the Spirits Canada Code or, if in Ad Standards’ opinion, the complaint is beyond the resources or ability of Ad Standards to resolve effectively, reasonably or conclusively under this Complaint Procedure; or if the matter to which such advertising refers has been identified by a competent authority such as an agency (or some other comparable entity) of the Canadian government, provincial or territorial government as being outside the purview of Ad Standards;
5. the complaint involves a registered trademark of a distilled spirits manufacturer;
6. the principal remedy sought by the complainant is that Ad Standards request the removal from retail outlets of a product on which the allegedly non-compliant advertising appears or may be seen;
7. the complainant is, in the opinion of Ad Standards, abusing this Complaint Procedure.

Complaint Review Process

All complaints directed to Ad Standards will be initially evaluated by staff. If, in its evaluation, Ad Standards makes a preliminary determination that there may be a Spirits Canada Code infraction by the advertisement (i.e. an accepted complaint), the complaint, including the identity of the complainant, will be forwarded verbatim to the advertiser unless the complainant is a consumer who withholds his or her consent to be identified.

Where a preliminary determination has been made that there may be an infraction of one or more provisions of the Spirits Canada Code, the advertiser will be asked to respond directly to Ad Standards by providing, in writing and without unreasonable delay, information requested by Council in order that Council may deliberate and reach a fully-informed decision about whether the Spirits Canada Code has, in fact, been violated.

Council Hearing and Decision

If a complaint raises a potential Spirits Canada Code issue and concerns an English-language advertisement, other than one that appears only in Quebec, it will be directed to the Standards Council. If a complaint raises a potential Spirits Code issue and concerns advertising in the French language, or advertising that appears only in Quebec, the complaint will be evaluated and decided by le Conseil des normes.

At the initial Council deliberation, the materials available for Council’s review include, at a minimum, the complaint letter, the advertiser’s written response, if any, and a copy of the advertising in question. Council’s decisions are by majority vote. Any member of Council may abstain from voting on any matter.

If Council concludes an advertisement violates the Spirits Canada Code, the advertiser, with a copy to the complainant, will be notified of the decision in writing and requested to appropriately amend the advertising in question or withdraw it, in either case without unreasonable delay.

If, at the initial deliberation by Council, the complaint is not upheld, both the complainant and the advertiser will be notified in writing with an explanation for Council’s decision.

Appealing a Council Decision

Both the complainant and the advertiser are entitled to request an appeal from a decision of Council by filing a Request for Appeal addressed to Ad Standards. The Request for Appeal must be in writing and received at Ad Standards within seven working days after the decision is sent to the parties. It must provide the appellant’s reasons for believing the decision was in error. A request by an advertiser for an appeal will be considered if that advertiser undertakes in writing to withdraw the advertising in question within 11 working days after the Request for Appeal is received at Ad Standards. The withdrawn advertising may be reinstated, however, if at the appeal hearing the Appeal Panel decides not to uphold the complaint. Advertisers will be granted a reasonable extension of time in which to withdraw the advertising if Council is satisfied that the advertising medium used to convey the advertising is unable to facilitate the withdrawal in the designated time.

A five-person Appeal Panel will be selected from among a roster of persons who did not serve at the original Council deliberation. The Appeal Panel will comprise two public representatives with the balance coming from the advertising industry sector. Both the advertiser and the complainant will be requested to make only written submissions to the Appeal Panel. The submissions must be brief, confined strictly to the matters under appeal and received by Ad Standards within the requested timeframe. At the appeal hearing, the complaint will be treated as a new complaint and the matter reconsidered in its entirety.

Decisions of Appeal Panels will be by majority vote and will be sent to both parties following the appeal hearing. Decisions by Appeal Panels will be binding and final.

Ad Complaints Reports

Ad Standards periodically publishes reports on complaints submitted to Ad Standards about advertising. The Ad Complaints Reports are divided into two sections: "Identified Cases" and "Non-identified Cases”.

In the "Identified Cases" section, details will be provided of those complaints that were adjudicated and upheld by Council under the Spirits Canada Code. This section will include identification of the advertiser and advertising. For this section, advertisers will be entitled to submit an “Advertiser’s Statement” regarding their advertisements about which Council has upheld one or more complaints.

In the "Non-identified Cases" section, complaints adjudicated and upheld by Council about advertisements “appropriately dealt with” by the advertiser will be summarized, without identifying the advertiser or the advertisement.

"Appropriately dealt with" by the advertiser, or “appropriately amending the advertisement”, means action voluntarily undertaken by the advertiser, without delay, to amend the advertisement to correct the alleged infraction, after being advised by Ad Standards that a complaint had been received and before the matter was brought forward to Council for review and decision. Alternatively, the advertiser, without delay, may withdraw the advertisement from any further exposure, distribution or circulation.

Identifying the Advertiser and its Advertising

Ad Standards will have the discretionary right, but not the obligation, in “Non-identified Cases” to identify and comment on an advertiser, its advertising and the outcome of a complaint about the advertising as adjudicated by Ad Standards, Council and/or an Appeal Panel.

This discretionary right arises when, in a “Non-identified Case”:

1. an advertiser (a term which includes both the advertiser of the advertising in question and a complainant who is a different distilled spirit advertiser) has, in Ad Standards’ opinion, permitted or participated in the disclosure publicly of the identity of the advertiser and the advertising in question, and/or the outcome of one or more complaints about the advertising as adjudicated by Ad Standards, Council or an Appeal Panel; or
2. when the advertiser of the advertising in question specifically asks Ad Standards to comment publicly on the advertiser’s advertising in question and/or the outcome of one or more complaints about the advertising as adjudicated by Ad Standards, Council or an Appeal Panel.

Re-Opening a Case

Ad Standards will have the discretionary right to reactivate the Complaint Procedure, in whole or part, including the imposition of sanctions, if an advertiser fails to fulfill its undertaking to withdraw or amend an advertisement; or if the matter underlying the complaint is of a continuing or repetitive nature, suggesting an avoidance of the provision(s) of the Spirits Canada Code.

Advertiser’s Failure to Respond or Participate

If an advertiser fails to respond in a timely manner to Ad Standards’ request for a copy of the advertisement that is the subject of a complaint, Ad Standards may ask the carrying media to providing Ad Standards with a copy of the advertisement in question. If an advertiser fails to respond to a complaint or participate in the Complaint Procedure the complaint may be decided in the advertiser’s absence based on the information already in the possession of Council and on any further pertinent information submitted by the complainant for Council’s review.

Failure to Follow Procedure or Comply with Decision

If an advertiser fails to participate in or comply with the provisions of the Complaint Procedure or to voluntarily comply with a decision of Council, Ad Standards:

• will advise exhibiting media of the advertiser’s failure to co-operate and comply, and request media’s support in no longer exhibiting the advertising or representation(s) in question; and
• may publicly declare, in such manner as Council deems appropriate, that the advertising or representation(s) in question have been found to contravene the Spirits Canada Code, and publicly identify the advertiser of such advertising or entity making such representation(s); and
• may notify the applicable provincial and/or territorial liquor authorities of the fact that the advertiser of such advertising or entity making such representation(s) has not participated in or with the Complaint Procedure and/or that the advertising or representation(s) in question has or have been found to contravene the Spirits Canada Code, and that the advertiser or entity making the representation(s) has not complied with a decision of Council.