Barilla Canada is seeking authorization for a class action against the Italian pasta giant for misleading advertising2 . The subject of this ire is the expression "Italy #1 brand of pasta / La marque de pâtes No.1 en Italie" that consumers can read on all the Brand's famous blue-packed products and accompanied by an Italian flag. The catch? The pasta is produced in Canada or the United States.
As part of the class action, consumers are alleging that they were duped as to the provenance and true quality of the products. In fact, according to their application, they had chosen Barilla pasta precisely because they believed it to be authentically Italian, and therefore of superior quality, and were prepared to pay a higher price because of this assurance.
This class action is a good opportunity to reassess the principles of false or misleading advertising, as well as the precepts of comparative advertising in Quebec.
General principles
In Quebec, anyone engaging in misleading advertising or deceptive marketing practices is risking substantial consequences up to several million dollars in fines3 , notably under the Competition Act4 ("CA") and the Consumer Protection Act5 ("CPA")6.
The CA and CPA prohibit false or misleading indications relating to "an important point", i.e., those proving to be the tipping point in the consumer's purchasing decision towards one product rather than another. This central notion is assessed according to the criterion of overall impression. The Competition Bureau's guidelines7 state that general impression must be analyzed objectively from the point of view of a gullible, inexperienced consumer. The Supreme Court of Canada itself considered the analysis of this criterion in light of the CPA in Richard v. Times8.
Other laws also provide a more specific framework for advertising practices, such as the Consumer Packaging and Labelling Act9 ("CPLA"), more specifically its article 7 which prohibits the use of false or misleading information relating to a product, or information that could reasonably be expected to give such an impression.
In the case at hand, consumers of Barilla pasta argue that they could legitimately have the general impression that the product they were about to buy came from Italy and was made with superior Italian flour, simply by reading the predominant phrases on the packaging accompanied with the Italian flag10.
Specific rules for comparative and origin claims
Geographical indications on product packaging can also play tricks on retailers. In fact, misleading consumers into believing that a product comes from a specific country could be considered a misleading claim of origin. For example, the Federal Court ruled that the labelling of bottles of wine produced in the West Bank with the words "Product of Israel" constituted a false or misleading claim, as the wine was produced from grapes grown and processed in Israeli settlements based in the West Bank, which are not part of the State of Israel11. What's more, the use of the expression "#1" can be considered as comparative advertising, a practice also regulated as false or misleading advertising. The principles governing comparative advertising were recently analyzed in the Energizer Brands decision12, already the subject of a previous article13.
Self-regulatory framework
Advertising Standards Canada (ASC) complements these legislative rules through a self-regulatory framework14. For example, the guidelines of the Canadian Code of Advertising Standards15, a self-regulatory tool administered by Advertising Standards Canada, stipulates that any claim in an advertisement must be supported by conclusive and reliable evidence. If a claim is based on research data, for example, it should be reasonably established and reliable, and all relevant details must be clearly stated and understandable.
Key Takeaway
Although this class action is only at the application stage, it nevertheless sends out a strong reminder of the fine line between simple package labelling and misleading advertising. To avoid these situations, retailers need to look at their products as a whole and avoid overly tempting titles and confusing labelling terms. This exercise should always be performed from the point of view of a gullible and inexperienced consumer. If you have any questions about claims of origin, comparative advertising or any other advertising initiative, please do not hesitate to contact the members of our Advertising and Marketing Law and Regulatory Affairs team.
Footnotes
1 Caroline Jonnaert is a Lawyer, Trademark Agent and Partner, and Stéphanie Karam is an Associate at ROBIC, L.L.P., a multidisciplinary firm of Lawyers and Patent and Trademark Agents. They would like to thank Lucie Tornier for her contribution to the writing of this article.
2 Application for authorization to institute a class action, filed by Lex Group on October 25, 2022.
3 Competition Bureau Canada press release, Keurig Canada to pay $3 million penalty over coffee capsule recycling guidelines (online).
4 Competition Act, RCL 1985, c C-34, art 52 and 74.01(1).
5 Consumer Protection Act, RLRQ c P-40.1
6 In addition to the hefty maximum fines of $750,000 for individuals and $10,000,000 for corporations, a restitution order may also be issued by the court, requiring direct compensation to consumers who purchased the offending product.
7 Competition Bureau Canada, The general impression criterion (online)
8 Richard v. Times Inc, 2012 SCC 8 (CanLII)
9 Consumer Packaging and Labelling Act, RCL 1985, c C-38
10 Knafo v. Barilla Canada inc, 2023 QCCS 3408 (CanLII), at para 1 and 2
11 Kattenburg v. Canada (Attorney General), 2019 FC 1003 (CanLII), [2019] 4 RCF 747, at para 128.
12 Energizer Brands, LLC v. Gillette Company, (2023) CF 804
13 Caroline Jonnaert and Stéphanie Karam, Comparative Advertising and Trademarks: Energizer Brands LLC v. Gillette Company, ROBIC Publications (online)
14 Advertising Standards Canada, Advertising guidelines (online)
15 Advertising Standards, Canadian Code of Advertising Standards (online), art. 1
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.