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2023 Complaint Case Summaries
Identified Cases
Clause 1: Accuracy and Clarity | |
Advertiser: | Heartbeat International |
Industry: | Advocacy – Pro-life |
Region: | Ontario |
Media: | Out-Of-Home - billboard |
Complaint(s): | 1 |
Description: | The advertisement stated: “Already Kicking!” and “7 weeks from Conception”. The copy was accompanied by an image of a baby holding a soccer ball and the URL of a website to be used if someone is pregnant and needs help. |
Complaint: | The complainant took issue with the claim that a 7 week old fetus is the size of a full term baby, with fully formed limbs and the ability to kick a soccer ball. The complainant argued that this misleading information was potentially harmful to youths, women and people who have uteruses. |
Advertiser Response: | Although Ad Standards requested a response from the advertiser, there was no response sent to the Council. |
Decision: | 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) of the Code, and unanimously held that the complaint should be upheld under Clause 1(e) of the Code.
Council members reviewed the complaint, the advertisement, and since no scientific evidence was provided by the advertiser to support its claim, Council members also did some research on fetal development in order to assess the claim. Clause 1(e) of the Code provides that all advertising claims and representations must be supported by competent and reliable evidence, and that the advertiser must disclose that evidence to Ad Standards upon its request. Despite Ad Standards’ request, the advertiser failed to provide the evidence on which it relied to make the claim, and as a result was held to have contravened this requirement under the Code. In discussion of a potential violation of Clause 1(a), numerous Council members advised of information that they had found online and through prenatal books which outlined the stages of development. Based on the information presented at Council, it was agreed that the evidence does not support that claim that fetuses have feet at 7 weeks post conception. Some Council members also noted that the overall impression of the advertisement was that a fetus at 7 weeks after conception resembled a baby of several months of age as depicted in the visual of the ad. The majority of Council held that since a fetus was not “already kicking” and could not hold a ball as depicted in the billboard, the ad contained an inaccurate, deceptive or otherwise misleading representation in contravention of Clause 1(a). |
Infraction: | Clause 1(a), Clause 1(e) |
Advertiser’s Statement | While the URL referenced in the advertisement belongs to Heartbeat International, Heartbeat International has advised Ad Standards that it did not place this ad and is not aware of who did. |
Clause 1: Accuracy and Clarity | |
Advertiser: | Home Hardware Stores Limited |
Industry: | Retail – Household maintenance product |
Region: | Ontario |
Media: | Website |
Complaint(s): | 1 |
Description: | A product listing for a specific brand of product on the retailer’s website showed inventory of 2,000 units available at a specific store. The listing indicated that the “brand may be substituted”. The product was not available in store and a substitute was offered instead. |
Complaint: | The complainant took issue with the units of inventory listed for the specific brand where the retailer was aware that they did not actually have stock of that brand due to a stock shortage caused by the brand manufacturer’s labour issues. The complainant argued that this was a bait and switch tactic to bring people into the store on the premise that the brand named product was available, but then only offer a substitute product. |
Advertiser Response: | In its response to Council, the advertiser stated that the listing on its website clearly stated “Note: Brand may be substituted depending on availability at local stores”. The advertiser noted that there was a shortage of the brand name product at some stores, and that those stores had a product from another manufacturer that was comparable quality and function. At the time of the advertiser’s response to Ad Standards, the advertiser was no longer experiencing a backlog of orders of the brand name product. Finally, it noted that it was working with individual stores to update their inventory numbers on a more expedited basis “so as to avoid showing inventory for a particular product, even in situations where it is clear a substitution may be offered.” |
Decision: | Council appreciated the advertiser’s response, and considered the complaint together with the advertiser’s submissions.
Council members unanimously determined that the availability numbers provided for a specific branded product should be accurate and need to reflect the availability of that specific brand of the product. The use of a disclaimer was not helpful to the advertiser in respect of Clause 1(a) because the consumer would assume that the specific brand was available in the quantity shown. Council held that there are brands for a reason, and brands and its availability go hand in hand. Council also considered the issue of bait and switch and specifically whether the disclaimer helped the advertiser in that regard. Clause 4 of the Code provides that advertisements must not misrepresent the consumer’s opportunity to purchase the goods at the terms presented. If supply of the sale item is limited, or the seller can fulfill only limited demand, this must be clearly stated in the advertisement. The majority of Council held that, despite the disclaimer, consumers would go into the store assuming that they were going to be able to purchase the specific brand and then find out that only a substitute was available. As a result, it is Council’s decision that there was a Clause 4 contravention. |
Infraction: | Clause 1(a), Clause 4 |
Advertiser’s Verbatim Statement | Homehardware.ca displayed the incorrect stock available for a product in a specific dealer-owned store, where such product was out of stock but a comparable but competing brand was available. Upon a customer complaint, the product listing amended to include a disclaimer that “In-Store may substitute brand for another product”. Home Hardware regrets any inconvenience this listing may have caused. |
Clause 1: Accuracy and Clarity Clause 8: Professional or Scientific Claims |
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Advertiser: | Nautilus Family Chiropractic |
Industry: | Health Services |
Region: | Alberta |
Media: | Social Media |
Complaint(s): | 1 |
Description: | An advertisement for a chiropractic clinic included a visual of two neck x-rays with a “before” sticker over the image with a straight spine, and an “after” sticker over the image of a curved spine. The advertisement’s call to action to Calgary men was “Reverse Neck Curve FIXED!” and “Chronic Neck Pain and Headaches GONE!”. Next to the claim, there was a $35 new patient offer. |
Complaint: | The complainant took issue with claim related to the efficacy of treatment. The complainant felt that the results depicted in the images presented in the ad were not achievable using chiropractic intervention. |
Advertiser Response: | Although Ad Standards requested a response from the advertiser, there was no response sent to the Council. |
Decision: | Council members unanimously determined that the advertisement violated Clause 1(a) and Clause 1(e) of the Code. Council felt that while a chiropractic clinic may be able to achieve the results demonstrated, it likely would not be able to do so for every single person and yet there were no limitations set on the “fixed” claim.
On further investigation, Council found that the $35 offer was for an assessment and not for treatment; therefore it would be impossible for a patient’s spine to be fixed as depicted in the advertisement at the advertised price. The juxtaposition of the ‘fixed’ claim with the offer were misleading under Clause 1(a) of the Code. By virtue of the fact that the advertiser failed to provide Ad Standards with support of its advertised claim upon request, Council held that the advertiser was in violation of Clause 1(e) of the Code. Council considered whether the claim violated Clause 8 of the Code. The majority found that there were no scientific claims made within the advertisement and therefore there was not a violation of Clause 8. |
Infraction: | Clause 1(a), Clause 1(e) |
Clause 14: Unacceptable Depictions and Portrayals | |
Advertiser: | Kelowna Right to Life Society |
Industry: | Advocacy – Pro-life |
Region: | British Columbia, Saskatchewan |
Media: | Out-of-Home – billboard and Social Media |
Complaint(s): | 2 |
Description: | A billboard including a profile photo of a young woman as she was standing on a rock looking out over a body of water. The advertisement included the headline “Pregnant!” as well as copy that stated, “My mom is going to kill me!” with an arrow pointed to the young woman’s face, and “My mom really is going to kill me!” with an arrow pointed to the woman’s stomach. |
Complaint: | One complaint noted that the ad was highly offensive. Another complaint noted that there was no supporting evidence to the statements or accompanying explanation, but rather “places the blame” on the woman and may cause women “who have gone through this” to commit suicide. The complaint asserted that the ad was threatening to members of a vulnerable community. |
Advertiser Response: | Advertiser acknowledged receipt of the complaint but declined to respond. |
Decision: | 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 an unacceptable depiction and portrayal under Clauses 14(c) and 14(d) of the Code.
Council held that the ad disparaged those individuals who choose to have an abortion in contravention of Clause 14(c). While some Council members did not take issue with the first statement as a standalone claim given its common figurative sense to express anger rather than physical harm, Council unanimously determined that the second statement in the context of the ad as a whole was problematic under the Code. Specifically, the language that referenced the ‘killing’ of a fetus was denigrating. Killing is generally perceived as a criminal/wrongful act and as a result, the ad attributed a criminal and/or wrongful act to those who abort. This was further reinforced by the use of the wording ‘my mom’ as spoken by a fetus which implied that the fetus was a child. The majority of Council determined that the ad offended the standards of public decency prevailing among a significant segment of the population in contravention of Clause 14(d). |
Infraction: | Clause 14(c) and Clause 14(d) |
Non-Identified Cases
Clause 1: Accuracy and Clarity Clause 6: Comparative Advertising |
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Advertiser: | Manufacturer |
Industry: | Consumer Product Manufacturing |
Region: | National |
Media: | Advertiser’s Website |
Complaint(s): | 1 |
Description: | The advertiser’s website had a comparison chart to a competitor’s product. The advertiser’s product was listed as being made from ‘fabric A’ while the competitor’s product was listed as ‘fabric B’. When the product was received by the complainant, the tag said ‘100% fabric B’. |
Complaint: | The complainant stated it is deceiving to claim that a product is made from a fabric that is better than fabric B when it is in fact made exclusively from fabric B. |
Advertiser Response: | The advertiser explained that while fabric A used by the manufacturer is derived from fabric B, the two fabrics have significant differences in their manufacturing processes and resultant properties. In accordance with the federal labeling guidelines, the advertiser had to label the fabric on the actual product as fabric B as that is the generic fibre name under the legislation. The advertiser’s position is that indicating its product is made from fabric A highlights that it is a specialized version of fabric B. The advertiser has since updated its website to provide more details about the fabric used by both itself and its competitor. |
Decision: | Council appreciated the advertiser’s response, and considered the complaint together with the advertiser’s submissions.
Council was of the view that the characterization of fabric A as being different than fabric B, when in fact fabric A is a form of fabric B, was misleading and also unfairly disparaging to the competitor as it exaggerated the nature of the competitive differences. Council unanimously agreed that the advertisement violated Clause 1(a) and Clause 6 of the Code. |
Infraction: | Clause 1(a), Clause 6 |
Clause 2: Disguised Advertising Techniques Clause 9: Imitation |
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Advertiser: | Service Provider |
Industry: | House Maintenance Services |
Region: | Ontario |
Media: | Direct Marketing Ad - Postcard |
Complaint(s): | 1 |
Description: | A postcard stating that the provider of the postcard had attempted to deliver a package (all shipping prepaid). The postcard provided a toll-free number to call to arrange for a time for delivery, along with a smiley face. In fine print, it was noted that the consumer may be requested to participate in a product preview, and provided the name of the ‘sponsor’. |
Complaint: | Consumers were misled to believe that there was a failed attempted delivery of a package as a result of both the words included on the postcard and the inclusion of a smiley face that resembles a logo used by a well-known delivery service. The complainant asserted that the postcard was deliberately misleading and designed to have consumers call the number in order for the advertiser to be able to schedule an appointment to have a salesperson provide a demo about the advertiser’s products. |
Advertiser Response: | The advertiser argued that postcards were sent to people who had completed surveys for them in the past, and were an attempt to provide them a gift for allowing the advertiser to do a product presentation in the recipient’s home. The bottom of the postcard indicated the product presentation requirement. There was no attempt to mislead anyone with the use of the happy face. |
Decision: | Council appreciated the advertiser’s response, and considered the complaint together with the advertiser’s submissions.
Council noted that the advertiser’s name only appeared in small font in the disclaimer and that the ad was focused on the failed delivery attempt and on the call to action to reschedule a delivery. On this basis and in conjunction with the disclaimer alerting recipients that they may be asked to participate in a product demo, Council held that the postcard was a disguised attempt to make an appointment with the recipient to be able to deliver a sales pitch, and was not in fact a delivery attempt. It also determined that the use of the smiley face in conjunction with language about an attempted delivery implied that the postcard came from a well-known delivery company in order to incite people to call the advertiser. Council members unanimously held the advertisement to be in contravention of both Clauses 2 and 9 of the Code. |
Infraction: | Clause 2, Clause 9 |