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Procedural Notes
Procedural Note 1: Filing a Complaint
Under Section 1 of the Advertising Dispute Procedure (Procedure), the complainant advertiser’s initial submission must meet several criteria in order to be accepted by Ad Standards. This note is intended to provide clarity regarding what is necessary to meet these requirements.
All capitalized terms have the same meaning as set out in the Procedure.
I. What is the initial case that must be made in the Complaint? What are “prima facie reasonable grounds”?
While the Code places an obligation on the Advertiser to substantiate its claims, under the Procedure the Complainant must show reasonable grounds for any challenge before a Complaint will be accepted by Ad Standards.
Under Section 1.7 of the Procedure, one condition precedent to Ad Standards accepting a Complaint is that: “Ad Standards finds in the as-filed Complaint what, in the opinion of Ad Standards, are prima facie reasonable grounds under the provisions of the [Procedure] for proceeding with the Complaint...”
The meaning of “prima facie reasonable grounds” is best understood in conjunction with Paragraph 1.1 which requires that that the Complaint be “complete with all the evidence … on which the complainant advertiser is relying” and that the Complaint “specify the provisions of the [Code] which, allegedly, are contravened by the defendant advertiser’s advertising.”
When read together, these provisions require the complainant advertiser to put its best case forward from the outset. The complainant advertiser must do more than make unsubstantiated allegations in its Complaint. Instead, it either must show that it has credible and reliable evidence, or outline a specific basis for the challenge, which casts reasonable doubt as to the compliance of the Advertising in question with the Code. The bar is not high, but the Complaint must consist of more than a call for the defendant advertiser to defend its Advertising. Since no additional evidence may be filed after the initial Complaint, the complainant advertiser is encouraged to be thorough and complete in its submission.
II. What will be accepted as confirmation of a good faith attempt to resolve the dispute?
Section 1.3 of the Procedure requires that the Complaint be accompanied by written confirmation to Ad Standards’ satisfaction “that the complainant advertiser has made a good faith attempt to resolve the disputed issues with the defendant advertiser, but without success”. The Procedure does not specify what the form or content of this confirmation must be.
Ad Standards prefers to receive (i) a copy of clean correspondence sent from the complainant advertiser to the defendant advertiser at the conclusion of such good faith efforts, specifying the advertisement(s) and claim(s) still in contention and the efforts made to resolve the dispute; and (ii) either the defendant advertiser’s response that the advertising will not be withdrawn or amended to the complainant advertiser’s satisfaction, or the complainant advertiser’s confirmation that no response was received in a timely manner. In this way, Ad Standards can be satisfied that the parties have engaged in good faith attempts to resolve issues covering the full scope of claims and Advertising that are raised in the Complaint.
Other forms of written confirmation may be accepted on a case-by-case basis.
Ad Standards discourages the complainant advertiser from including with the Complaint copies of the full history of correspondence between the parties. Ad Standards may, at its sole discretion, remove or redact from the Complaint such records of exchanges from the Complaint prior to forwarding it to the Ad Dispute Panel.
III. What happens to the Complaint Filing Fee if a Complaint is not accepted by Ad Standards?
The Complaint Filing Fee is not refundable. If a Complaint is not accepted by Ad Standards, the fee will not be refunded to the complainant advertiser. In the rare instance where this occurs, the Procedure does not preclude the complainant advertiser from revising or augmenting its Complaint to resubmit to Ad Standards. Ad Standards will consider requests to allow the same Complaint Filing Fee to apply to its assessment of a revised Complaint, provided that it is resubmitted in a timely manner (e.g. within 10 days of the original Complaint).
If the revised Complaint is substantially different from the original, or if the revised Complaint is not resubmitted in a timely manner, then Ad Standards will require a new Complaint Filing Fee from the complainant advertiser.
May 2023
Procedural Note 2: Restrictions on New Evidence in Support or Rebuttal of Claims
Under the Advertising Dispute Procedure, each party is required to submit, “all the evidence and, where applicable, technical and/or consumer test results and methodologies” on which the party is relying within the initial complaint and defendant advertiser’s initial reply respectively (each an “Initial Document”).
The Advertising Dispute Procedure permits the complainant to respond to the defendant advertiser’s initial reply, and then permits the defendant advertiser to reply to that response (each a “Responding Document”). In doing so, each party has the opportunity to elaborate upon, or present additional information related to, the evidence included in their Initial Document provided that such additional evidence is presented only to rebut the critique(s) raised in the response received by the other party. Neither party is permitted to introduce new arguments or evidence beyond those directly connected to the rebuttal of the other party’s previous response. For clarity, the complainant may introduce such additional evidence in its Responding Document as a rebuttal to the defendant advertiser’s Initial Document, and the defendant advertiser may introduce such additional evidence in its Responding Document as a rebuttal to the complainant’s Responding Document.
The Advertising Dispute Panel will consider the critiques and rebuttals of evidence provided at each stage of the Advertising Dispute Procedure in weighing the reliability and competency of the evidence.
Any new arguments, allegations, or evidence submitted by either party in a reply in a manner deemed by Ad Standards to be prohibited under the Advertising Dispute Procedure will be shared with the other party but may be redacted by Ad Standards before the matter is sent to a Dispute Panel for adjudication. Any such redactions, and the reasons for them, shall be shared with both parties before the Dispute Panel begins its deliberations. The decision of Ad Standards to redact from any reply, and the nature of that redaction, is not open to appeal.
May 2024