Health Products Appeal Procedure
1.1 An appeal process is available to any advertiser whose advertising copy submission(s) has/have been rejected, in whole or in part, by the Health Products Section of Ad Standards.
1.2 Advertisers must lodge their appeal in writing, without unreasonable delay, after receiving notification of the Health Products Section's decision.
1.3 The written appeal must be directed to the Vice President, Standards Division, Ad Standards, with a copy to the Vice President, Ad Standards Clearance Services.
2.1 Requests for appeal will be accepted if, in the opinion of Standards Division, in relation to the submission(s) in question and the circumstances of the case:
a. it appears that the advertiser has extended reasonable efforts to negotiate approval of the rejected submission(s); and
b. it would be possible for an appeal panel, acting not unreasonably, to determine that the submission(s):
- does (do) not, as concluded by the Consumer Drug Section, contravene the provisions of the Food and Drugs Act and/or the Regulations thereto (as amended from time to time).
- does (do) not contravene, or is (are) not subject to the provisions of the Guidelines to Consumer Drug Advertising or any other guideline or policy statement which the Consumer Drug Section applied in rejecting the submission(s) in question.
2.2 Standards Division will, within two business days, make its determination under paragraph 2.1 above, and notify the advertiser and the Consumer Drug Section simultaneously whether the requested appeal will, or will not, be granted. A courtesy copy of this notice will be sent to Health Canada, if the advertiser's request for appeal is granted.
3.1 An appeal will ordinarily be heard within five business days from the time notice is received by the advertiser from Standards Division that the appeal has been granted.
3.2 Advertisers or the Consumer Drug Section may, at any time prior to the commencement of the hearing by the appeal panel, request from Standards Division a reasonable extension of time in which an appeal will be heard.
4.1 Standards Division, having notified the parties that the appeal will be granted, will assemble a three member panel (including a chairperson designated by Standards Division) of persons having no conflict of interest in the matter who will hear and consider the matter.
a. Each appeal panel will be composed of three persons drawn from a resource pool of persons representing Advertisers, Advertising Agencies, or Media (two representatives), and the public (one representative). The resource pool of persons representing Advertiser Organizations may be chosen from among the following groups: Association of Canadian Advertisers Incorporated; Canadian Cosmetic, Toiletry and Fragrance Association; Food and Consumer Products Manufacturers of Canada and Nonprescription Drug Manufacturers of Canada.
b. If, in any particular case, it is not possible to convene an appeal panel of that constituency because of the unavailability of candidate panellists, Standards Division shall be entitled to make substitutions.
c. The Advertiser and the Consumer Drug Section, in each case, will be given written advance notice in a timely manner of the identity of the appeal panellists who will be considering the appeal.
d. Either the Advertiser or the Consumer Drug Section may object to the inclusion of an individual panellist if the objecting party has a reasonable apprehension of bias on the part of such panellist. Such objection must be given in writing to, and received by, Standards Division within two business days of the panellists' identities having been given to the objecting party.
4.3 Each person drawn for service as an appeal panellist will be requested to attest that he or she has no conflict of interest in hearing the appeal and to agree to keep confidential all aspects of, and materials submitted for, the appeal.
4.4 Health Canada and/or any other relevant regulatory body having an interest in the appeal may, on its/their own initiative, designate their respective spokesperson to attend and to participate in the appeal proceedings; or one or more such bodies may be asked by any party to the appeal, including the chairperson, to attend the appeal hearing in order to provide its/their expertise which may be pertinent to the hearing and resolution of the appeal.
4.5 The appeal panel will convene to hear the appeal at the facilities of Ad Standards at the earliest possible time that is convenient to all parties, including the appeal panellists. At the discretion of Standards Division, participation by telephone conference call, of one or more of the involved parties and/or appeal panellists, may be permissible.
4.6 At least one business day in advance of the appeal hearing, Standards Division must receive and, without delay, will re-direct to the other party (or parties), to the appeal panellists and to the parties identified in paragraph 4.4 above, the written statement of particulars of the case that each of the advertiser and the Consumer Drug Section will submit to the appeal panellists at the hearing.
5.1 The only materials which may be appealed from and reviewed by the appeal panel are those rejected submissions which have been identified with a Consumer Drug Section clearance number, video cassettes containing rejected copy, and those written materials (such as, but not limited to, correspondence and memos between the parties relating to the rejected submission(s) attached to the advertiser's request for an appeal.
6.1 Each appeal panel hearing shall be conducted in accordance with the following procedure:
a. Each party to the appeal will be present at the same time during the hearing.
b. A Standards Division representative also will be present during and throughout the hearing until a decision is rendered by the appeal panel. The function of this Standards Division representative is to advise the appeal panel, objectively, on Consumer Drug Appeal Procedure and precedent, but not to participate in the subjective decision-making by the appeal panel. If requested by the appeal panel, the representative will also function as a recording secretary of the appeal panel's deliberations.
c. The Ad Standards Consumer Drug Section representative will make the first uninterrupted submission, detailing the reasons for rejecting the copy submission(s) in question. This will be followed by the enquiries of the appeal panellists and those of the advertiser.
d. Each spokesperson for Health Canada and/or such other regulatory body (see paragraph 4.4 above), if present, and requesting to be heard [or having been asked to make a submission] will make the next uninterrupted submission, followed by the enquiries of the appeal panellists, those of the Consumer Drug Section and the advertiser.
e. The third uninterrupted submission will be made by the advertiser, followed by the enquiries of the appeal panellists and those of the Consumer Drug Section.
f. Each party in the same order of appearance will then be entitled to make a brief, summary, closing statement.
g. The Consumer Drug Section and advertiser representatives (and, if applicable, the spokespersons for the Health Canada and/or any other such regulatory body), will be asked to retire from the appeal proceedings when the appeal panel is satisfied it has sufficient information to conclude its deliberations which will then be conducted in private. Notwithstanding the foregoing, the appeal panel may recall any one or more of the participants in the proceeding and request clarification of or elaboration on matters raised during the proceeding. In this paragraph 6.1 (g), the term "participants" includes the persons referred to under sub-paragraphs (c), (d) and (e) of this paragraph 6.1
h. Decisions of the appeal panel will be by majority vote.
i. All decisions shall be final and binding upon the parties and will not be subject to appeal.
j. Written notice and the rationale for decisions of the appeal panel shall be provided simultaneously to all parties in the proceeding within two (2) business days from the conclusion of the hearing.
6.2 Confidentiality: The fact that an appeal has been filed; or the fact that an appeal is to be (or was) heard; or any details about the outcome of an appeal hearing are all to be kept confidential by, and among, the Advertiser appellant, the Appeal Panel Members, the Consumer Drug Section, and Health Canada.
All inquiries by third parties about any cosmetics commercial which was, in fact, approved by the Appeal Panel Members, and consequently broadcast in Canada, must be re-directed, without comment, to the Consumer Drug Section which may only acknowledge that the as-executed advertising was the subject of, and approved, on appeal.