Marginal note:Representation as to reasonable test and publication of testimonials
74.02 A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, the supply or use of any product, or for the purpose of promoting, directly or indirectly, any business interest, makes a representation to the public that a test has been made as to the performance, efficacy or length of life of a product by any person, or publishes a testimonial with respect to a product, unless the person making the representation or publishing the testimonial can establish that
(a) such a representation or testimonial was previously made or published by the person by whom the test was made or the testimonial was given, or
(b) such a representation or testimonial was, before being made or published, approved and permission to make or publish it was given in writing by the person by whom the test was made or the testimonial was given,
and the representation or testimonial accords with the representation or testimonial previously made, published or approved.
- 1999, c. 2, s. 22.
Marginal note:Representations accompanying products
74.03 (1) For the purposes of sections 74.01 and 74.02, a representation that is
(a) expressed on an article offered or displayed for sale or its wrapper or container,
(b) expressed on anything attached to, inserted in or accompanying an article offered or displayed for sale, its wrapper or container, or anything on which the article is mounted for display or sale,
(c) expressed on an in-store or other point-of-purchase display,
(d) made in the course of in-store, door-to-door or telephone selling to a person as ultimate user, or
(e) contained in or on anything that is sold, sent, delivered, transmitted or made available in any other manner to a member of the public,
is deemed to be made to the public by and only by the person who causes the representation to be so expressed, made or contained, subject to subsection (2).
Marginal note:Representations from outside Canada
(2) Where a person referred to in subsection (1) is outside Canada, a representation described in paragraph (1)(a), (b), (c) or (e) is, for the purposes of sections 74.01 and 74.02, deemed to be made to the public by the person who imports into Canada the article, thing or display referred to in that paragraph.
Marginal note:Deemed representation to public
(3) Subject to subsection (1), a person who, for the purpose of promoting, directly or indirectly, the supply or use of a product or any business interest, supplies to a wholesaler, retailer or other distributor of a product any material or thing that contains a representation of a nature referred to in section 74.01 is deemed to make that representation to the public.
Marginal note:Certain matters need not be established
(4) For greater certainty, in proceedings under sections 74.01 and 74.02, it is not necessary to establish that
(a) any person was deceived or misled;
(b) any member of the public to whom the representation was made was within Canada; or
(c) the representation was made in a place to which the public had access.
Marginal note:General impression to be considered
(5) In proceedings under sections 74.01 and 74.02, the general impression conveyed by a representation as well as its literal meaning shall be taken into account in determining whether or not the person who made the representation engaged in the reviewable conduct.
- 1999, c. 2, s. 22;
- 2009, c. 2, s. 423.
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