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CBA National Competition Law Section
Young Lawyers Committee / Marketing Practices Committee
THE POSSIBLE MEETS THE PERMISSIBLE
MEETS THE ADVISABLE
—
Rendering Valued Advice on Marketing Practices
Kim D.G. Alexander-Cook
Partner
NNOVATION LLP
—
Clare G. Smith
General Counsel
Labatt Breweries of Canada
 Marketing Practices and the Roles of Outside Counsel
 The Competition Lawyer Voice:
~ There is no substitute for legal expertise ~
 Expertise in the statutes/codes
 Substance:
 Competition Act: Criminal & Reviewable / Consumer Packaging and
Labelling Act: ss. 2, 4-7 / Food & Drugs Act: ss. 2, 5, 9, 17, 20 /
Provincial CPAs: e.g., Consumer Protection Act, 2002 (Ontario): ss. 14-17
 Advertising Standards Canada: Canadian Code of Advertising Standards
 Pharmaceutical Advertising Advisory Board: Code of Advertising
Acceptance
 Other specialized sources
 Process:
 Initiating process: complaint, application, private action, public
investigation, criminal charge etc.
 Steps in process: inquiry, court orders, types of evidence, hearings, etc.
 Resolutions/Remedies/Penalties: AMPs, fines, restitution, corrective
notice, rescission, behavioural order, criminal conviction, etc.
(Competition Lawyer Voice … cont’d)
 Expertise in economics / claims evidence / jurisprudence
 Key economics questions: market definition / competitive
effects
 Claims evidence: consumer research / product research /
statistics
 Look to U.S. and E.U. cases, in addition to Cdn cases
 Expertise in enforcement priorities and the approach of
authorities
 Competition Bureau guidance documents / public
statements / personal discussions
 ASC and PAAB / personal discussions
 Health Canada guidance / personal discussions
 The Business Lawyer Voice:
~ There is no substitute for good judgment ~
 Marketing practices that can attract scrutiny are
generally competition at its best — tools to gain
commercial advantage
 Need to understand client well and exercise judgment
accordingly:
 Market position(s), goals, risk tolerance, budget, internal
control processes, compliance programs, product/service
portfolio, skeletons (if any), etc.
 Key individuals: Legal Counsel, VP Marketing, VP sales,
VP Communications, CFO
 Inside Counsel / Management:
What are they looking for from Outside Counsel?
 Critical area of practice for in-house counsel, but they
tend not to be “experts”
 Expertise in this area can help select law firm of choice
 Contacts/relationships with regulators, broader industry
knowledge, expertise
 Can help you say “no” or help you to say “yes”
• Outside perspective
(Inside Counsel / Management … cont’d)
 Compliance programs/training for in-house legal
departments or senior management
 Social media can raise privacy, IP, misleading
advertising, contest issues etc.
 Keeping pace with evolving technologies and trends
 Want practical, solution-oriented advice, and want it
fast and at a low cost
 Key to understand business and risk tolerance of
business
 Type of media used
 Incumbent or new entrant
 Marketing and Advertising Practitioner: Where Do I Stand
and Where Can it Lead?
 The Role:
 Practice issues engaged: Contract negotiation & review /
agencies / promotional contests / new media / privacy /
copyright / trade-marks / regulated products & services /
complaints / legal & reputational risk analysis
 Potential practice synergies: Specialized products &
services / trade-marks/copyright, including licensing /
general commercial agreements / e-commerce /
competition law / entertainment law
 Positioning the Role:




As
As
As
As
Competition Lawyer?
General Corporate/Commercial Lawyer?
General Litigation Lawyer?
Specialist?
 Discussion / Questions