Performance claims can be an effective way of advertising a
product and comparing it to competitors. But the Competition Act
prohibits making performance claims not based on an adequate and
proper test. Two recent cases highlight the dangers inherent in
this provision for advertisers.
The first involved Rogers Communcations Inc. Rogers' claims
that customers of its Chatr brand experienced fewer dropped calls
than those of the new entrants were not false or misleading, the
Ontario Superior Court held recently in dismissing, in large part,
an application by the commissioner of competition.
The court did find, however, that Rogers had breached the
performance claims provision of the Competition Act, because it did
not conduct adequate and proper tests before making certain
representations in Calgary, Edmonton, and Montreal.
Advertisers should draw three important lessons in this case.
First, they cannot base a performance claim even on proven
technical advantages.
Rogers defended its comparative claims based on superior technical
characteristics of its network, as compared with the new entrants,
and drive tests to determine dropped-call rates.
Justice Frank Marrocco agreed that Rogers' network had the
technical advantages it claimed but found they did not relieve the
company of the requirement to test its comparative dropped-calls
claim.
Second, they must conduct the tests before making the performance
claims. The truth of the claim is no defence: a test conducted
after making the claim will not be adequate or proper even if it
confirms the truth of it.
Third, they must consider the level of confidence in test
results.
Rogers' experts claimed a 95-per-cent confidence rate in their
testing. Marrocco commented on this issue. "I am not persuaded
that, in deciding whether the respondents have discharged the
burden of proving that their fewer dropped calls claim was based
upon an adequate and proper testing, a 95 per cent confidence level
is consistent with a balance of probabilities standard of proof.
The level of confidence required in the result of the test before
it can be considered adequate and proper must be consistent with
that standard of proof."
It is not clear what Marrocco meant by this. It would make little
sense to take his comments to suggest that advertisers need to
prove performance claims with a confidence of only 51 per cent
since a test at that accuracy level is no better than the flip of a
coin.
In the absence of clear guidance from the court, advertisers should
ensure they conduct tests to a level of confidence that is
consistent with proper scientific practice for the test in
question.
The second case involves Hyundai Motor Co. and Kia Motors Co. It
illustrates the advantages and disadvantages of voluntarily
disclosing an error in a performance claim.
Hyundai and Kia advertised fuel-consumption figures based on tests
conducted in Korea. They later discovered procedural errors in the
testing that invalidated the results.
The two carmakers chose to go public with the error and compensate
consumers. They offered consumers prepaid credit cards for the
extra fuel they used over and above the advertised consumption
rating plus 15 per cent.
They also reported themselves to the Competition Bureau. The move
led to a consent agreement that formalized the compensation program
they had already announced. The bureau agreed that further
restitution or notice were not necessary nor were administrative
monetary penalties appropriate.
The bureau trumpeted this result in a press release. While the
press release commended Hyundai and Kia for "reaching out to
consumers," it failed to make it clear that Hyundai and Kia
discovered the problem and remedied it before reporting
themselves.
Hyundai and Kia also faced class action claims in both Canada and
the United States. They offered a lump-sum alternative to consumers
to settle the U.S. class action. It structured the lump-sum
alternative as a credit for service or a new car so as to bring
customers into the dealerships.
Most people would agree Hyundai and Kia did the right thing. The
advantages of self-reporting and voluntary compensation include
lenient treatment from authorities; more control over compensation
for consumers, including the ability to fashion a plan that
promotes loyalty; and greater ability to manage the public
perception and influence how the media will treat the story.
But the disadvantages include the bureau's desire to formalize
the arrangement into a consent agreement that creates a record it
might use against the company if it experiences another inaccurate
performance claim and class action liability.
The bottom line for advertisers is this: performance claims can be
highly effective, but if they don't take care before making
such claims in advertisements, liability and bad publicity can be
the result.
Originally published in Law Times, 7 October 2013
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