Council discussed whether #partner was sufficient to disclose a relationship between the influencer and the advertiser. Council also considered whether the inclusion of a personalized discount code within the post helped make the relationship more clear to consumers. Some members of Council thought it would be sufficiently clear that it was a sponsored post for regular users of the Instagram. The majority of Council held that the advertiser was not clearly identified within the advertisement in violation of Clause 1(f) of the Code. The majority of Council found that there was no violation of Clause 1(b), Clause 2 or Clause 7.

In assessing the truthfulness and accuracy of an advertising claim or representation under Clause 1 of the Code, the concern is not with the intent of the advertiser or precise legality of the presentation. Rather the focus is on the claim or representation as perceived by the average consumer.

Council considered the comparative claim in the context of the general impression conveyed by the ad. A majority found the comparative claim unclear and understood that some may perceive the ad differently than intended by the advertiser. Indeed, the take-away by a minority of Council, emphasized by the visual, was a comparison of the vehicle against the two-wheeler category. Some Council members noted that the award rankings listed on the third-party organization website was against comparable size class vehicles, not against all other vehicles, which was not evident from the general impression conveyed by the ad. On this basis, the majority of Council held that the ad contained an inaccurate, deceptive or otherwise misleading representation in contravention of Clause 1(a).

A minority of Council found that the third-party award badge disclaimer was unclear and omitted relevant information under Clause 1(b) and 1(c), namely the specific category the comparative claim was based upon. However, this was not the prevailing view of Council.

When advocacy advertising is considered under the Code, Council is instructed not to evaluate the advertising based on their personal views of the subject. The Code does not prohibit or restrict any particular position or argument, provided that in communicating its message the ad complies with the standards of truthful, fair, and accurate advertising prescribed under the Code. Council considered whether the claim made in the advertisement was misleading under Clauses 1(a) and 1(e) of the Code.

In its analysis, the majority of Council found that the complaint should be upheld under Clause 1(a) and Clause 1(e) of the Code. Council was of the view that the general impression of the ad, inclusive of the visual of the ECG reading and the image of a baby, was that there was a fully formed heartbeat within the time frame referenced in the ad (very early on in pregnancy). In Council’s view based on revisiting the scientific evidence presented, the science did not support the claim and therefore the claim was misleading. In analyzing whether there was a violation of Clause 1(e), the majority of Council found that the evidence provided by the advertiser was inconsistent and some members questioned the veracity of the sources.

The Appeal Panel appreciated the advertiser’s response and carefully considered the further submissions in the advertiser’s appeal and reconsidered Council’s original decision.

Upon review of the material, Panel members unanimously found the advertiser’s submission not to be persuasive in warranting a departure from the initial Council’s decision under Clause 1(a); however, this was not the case under Clause 1(e).

The advertiser’s position was that the ad was indeed factual and based on science, and submitted two (2) additional sources to substantiate the claims and representations made in the ad about the beginnings of the fetal heartbeat.

The Panel considered the visuals together with the definitive claim about the timing of the fetal heart development. The Panel was of the view that the general impression conveyed by the ad was inaccurate, deceptive or otherwise misleading because it suggested that a fetus has a fully formed heartbeat within the time frame of development specified. The impression conveyed was that the heartbeat formed would generally be understood by the average person to be the “heartbeat” of a baby, as opposed to a sporadic electrical impulse (i.e. that would represent developing early stage embryonic activity). The ad conflated these two, which the Panel determined was misleading. Based on the Panel’s own due diligence from publicly available online sources, the consensus was that a fully formed heartbeat would not be formed within the time set out in the advertisement; therefore, the Panel unanimously found a violation of Clause 1(a) of the Code.

The Panel found that while there were inconsistencies between the evidence provided by the advertiser that created confusion, the evidence provided did seem credible and legitimate; and therefore, the majority of Panel members found that there was no violation under Clause 1(e) of the Code.

Council acknowledged both the importance and necessity of having different points of view on issues of public debate, like the COVID-19 pandemic lockdowns, and that it is valid for the advertiser to take the position that the lockdowns have not been worthwhile. These issues are the subject of a live and reasonable debate.

In that light, Council considered the general impression conveyed by the advertisement under Clauses 1(a) and 1(e) of the Code. Specifically, the open question for Council was whether the leaflet gave off the impression of being the advertiser’s opinion or statements of fact. A majority of Council members found that it was not clear the leaflet represented an opinion piece. On the contrary, the leaflet contained many statements of fact, such as the assertion of Charter violations that have not yet been settled by a court, that a global agency has called for an end to the lockdowns and that COVID-19 has not impacted death rates in Canada. As such, the majority of Council found that the general impression conveyed from the leaflet as a whole was that the claims were factual and played upon fears to mislead the consumer about the lockdowns in contravention of Clause 11 of the Code.

Under Clause 1(e) of the Code, each claim, when put forward as a statement of fact, must be supported by competent and reliable evidence and the onus is on the advertiser to provide such support. Council was unanimous in its determination that the advertiser did not meet this requirement. Though in its submission to Council the advertiser stated its website contained support for its claims, Council did not find sufficient studies and data on the advertiser’s website. For these reasons, Council was unanimous in its decision that there was a violation of Clause 1(e).

A minority of Council members did not find a contravention of Clauses 1(a) or 11, as the advertisement’s general impression was that it was an opinion piece, without being fearmongering. However, this was not the prevailing view of Council.

Council recognized that there was no intent to mislead. However, in assessing the truthfulness and accuracy of an ad under the Code, the concern is not with the intent of the advertiser. Rather the focus is on the general impression conveyed by the ad.

Council unanimously found that the advertisement contravened Clause 1(a) and Clause 1(b) of the Code. Council agreed that the addition of a ‘while supplies last’ disclaimer may have been helpful to alert consumers that the item may run out of stock quicker than its regular weekly promotions. However, Council determined that it would not have been sufficient to inform consumers that the item was excluded from its rain check and additional discount policy for out of stock items featured in the flyer.

A majority of Council members were also concerned that the ad did not fully explain the terms and conditions associated with its rain check and additional discount policy, nor did it direct consumers to where this pertinent information could be located. On this basis, the majority determined that the ad failed to fully explain the conditions and limits associated with the advertiser’s out of stock policy in contravention of Clause 5, which resulted in a deceptive discount in contravention of Clause 3(a).