Meet Nicola Pfeifer, Senior Competition Law Officer, Cartels and Deceptive Marketing Practices from Competition Bureau Canada, with the first of a series of four episodes between now and the end of the year created for retailers to help them understand the laws governing and protecting retailers. In this episode, Nicola gives us an overview of Competition Bureau Canada that will provide the foundation for the series and then dives into her particular area of expertise, deceptive marketing practices.
Welcome to The Voice of Retail. I'm your host Michael LeBlanc. This podcast is brought to you in conjunction with Retail Council of Canada.
Meet Nicola Pfeifer, Senior Competition Law Officer, Cartels and Deceptive Marketing Practices from Competition Bureau Canada, with the first of a series of four episodes between now and the end of the year created for retailers to help them understand the laws governing and protecting retailers. In this episode, Nicola gives us an overview of Competition Bureau Canada that will provide the foundation for the series and then dives into her particular area of expertise, deceptive marketing practices.
Thanks for tuning into this special episode of The Voice of Retail. If you haven’t already, be sure and click subscribe on your favourite podcast platform so new episodes will land automatically twice a week, and check out my other retail industry media properties; the Remarkable Retail podcast, the Conversations with CommerceNext podcast, and the Food Professor podcast. Last but not least, if you are into BBQ, check out my all new YouTube barbecue show, Last Request Barbeque, with new episodes each and every week!
I’m your host Michael LeBlanc, President of M.E. LeBlanc & Company & Maven Media, and if you’re looking for more content, or want to chat follow me on LinkedIn, or visit my website meleblanc.co! Have a safe week everyone!
About Michael
Michael is the Founder & President of M.E. LeBlanc & Company Inc and a Senior Advisor to Retail Council of Canada as part of his advisory and consulting practice. He brings 25+ years of brand/retail/marketing & eCommerce leadership experience and has been on the front lines of retail industry change for his entire career. He has delivered keynotes, hosted fire-side discussions with C-level executives and participated on thought leadership panels worldwide. Michael was recently added to ReThink Retail’s prestigious Top 100 Global Retail Influencers for a second year in 2022.
Michael is also the producer and host of a network of leading podcasts, including Canada’s top retail industry podcast, The Voice of Retail, plus the Remarkable Retail with author Steve Dennis, Global E-Commerce Tech Talks and The Food Professor with Dr. Sylvain Charlebois. Most recently, Michael launched Conversations with CommerceNext, a podcast focussed on retail eCommerce, digital marketing and retail careers - all available on Apple, Spotify, Amazon Music and all major podcast platforms. Michael is also the producer and host of the “Last Request Barbeque” channel on YouTube where he cooks meals to die for and influencer riches.
Michael LeBlanc 00:05
Welcome to The Voice of Retail. I'm your host Michael LeBlanc. This podcast is brought to you in conjunction with the Retail Council of Canada.
Michael LeBlanc 00:10
Meet Nicola Pfeifer, Senior Competition Law Officer, Cartels and Deceptive Marketing Practices from Competition Bureau Canada, With the first of a series of four episodes between now and the end of the year created for retailers to help them understand the laws governing and protecting retailers. In this episode, Nicola gives us an overview of Competition Bureau Canada that will provide the foundation for the series, and then dives into her particular area of expertise, deceptive marketing practices. Nicola, welcome to The Voice of Retail podcast. How are you doing this morning?
Nicola Pfeifer 00:40
Thanks very much. It's great to be here. I'm doing very well. Thanks.
Michael LeBlanc 00:44
And where are we finding you today, you're on the West Coast, right?
Nicola Pfeifer 00:47
I am, I am in my home office in East Vancouver in Vancouver, British Columbia. Our office, our regional offices downtown but for the moment we're at home. So, (crossover talk) here I am.
Michael LeBlanc 01:01
So, thanks so much for joining me this is you know, this being the first of, of four episodes and you have the task amongst your colleagues of us kicking us off with not only a bit about yourself, which I'll, we'll get to in a sec, but also an overview of Competition Bureau Canada, kind of to help us really understand what the division is and what it does and all the mechanics around it. And then we won't repeat that in the next three. We get right into the particular areas, the functional areas that my next guests look after. So, that's a bit of laying the groundwork for our audience. But let's, let’s jump in, tell us about yourself what you do for a living and a bit about your background?
Nicola Pfeifer 01:45
Sure. So, as I said, I'm Nicola Pfeiffer. I'm a Senior Competition Law Officer with the Competition Bureau of Canada. I'm located in the Bureau's Vancouver regional office. A little bit about me: I was born in Quebec, I grew up in Ottawa, and my dad was a lawyer in international development. So, I was exposed to many areas of the law throughout my childhood. I went to law school in Ottawa and came out and got a job at the Department of Justice in the Competition Law Section. They tended to have large documents, document heavy cases. And I had some familiarity with that, from doing some work with my dad, so it was a good fit.
Nicola Pfeifer 2:09
About a year later, in 2006, those of us doing criminal work were moved over to the newly created Public Prosecution Service of Canada, otherwise known as the PPSC. So, I spent about 10 years total at the PPSC. The first half was at the competition, law division doing criminal work under the Competition Act. And the second half was at the PPSC. Vancouver regional office, just doing general economic crime of all kinds. We did a lot of tax fraud, CBSA files, Canadian, Canada Border Services, smuggling, employment insurance, basically anything to do with money. So, I needed a little bit of a break, after that, lots of trials and being out of town and a friend who worked at the Competition Bureau and highly recommended it. So, I looked into it. And I've been here for about eight, eight years.
Michael LeBlanc 03:32
Fantastic now, I mean, it sounds like you're, your interest in the law started at the kitchen table basically. You and I are both you, and I have something in common. I'm from Ottawa as well. I grew up in the West End,
Nicola Pfeifer 03:42
I'm a, I'm an e-, I'm an East Ender, so, we'll be at odds there but yeah, you know, it's a great place to grow up.
Michael LeBlanc 03:48
And, and is that right that you kind of picked up that appetite or that interest in the law around the kitchen table and pursued? Is that what got you where you are today from a career?
Nicola Pfeifer 03:57
Yeah, I did. There was a lot of debate about social, political issues around the kitchen table. So, I was really lucky that my brother and I benefited from that. And then dad eventually was doing work in international development and then turned his mind to large document collections. And there was a real need for helping government departments prepare for litigation and Commissions of inquiry. So, I was immersed in that world for several years and found it quite interesting. So,
Michael LeBlanc 04:18
Interesting.
Nicola Pfeifer 04:19
It's been an unusual career track for sure.
Michael LeBlanc 04:38
As I said off the top where you've got the, the burden so to speak, or the privilege of, of explaining Competition Bureau Canada, what you do, and then I want to investigate or investigate. I'd like to learn more about this BPSC. Why don't we start off at Competition Bureau Canada, scope, scale, the work you do, areas of focus, you know, the broad outline of and then we'll get to the broad outline of what a typical process looks like.
Nicola Pfeifer 05:01
Sure. So, we're a federal law enforcement agency, we ensure that Canadian consumers and businesses prosper in a competitive and innovative marketplace. We have 370 employees in four offices, Ottawa, Gatineau is where you'll find our headquarters. And then we have regional offices in Montreal, Toronto, and Vancouver. So, the Competition Bureau provides advice to various levels of government on pro-competitive regulatory design. And we promote corporate compliance and consumer awareness through our outreach activities. One of the big activities we are involved in annually is Fraud Prevention Month, every March. And I'll tell you a little bit about that later on. The Bureau investigates several types of business practices, and they would be deceptive marketing practices. So, that's what I'm going to talk about today. Cartels are essentially price fixing and bid-rigging. Mergers, where we look at whether a merger will likely lead to substantial anti-competitive harm in the market. And lastly, monopolistic practices where we look at whether a dominant player is causing anti-competitive harm by abusing its market power. So, those are the main lines of business at the Bureau.
Michael LeBlanc 06:27
Right. And then so you, is it fair to say and I think there's a TV show that talks about this, there's people who investigate the crimes and then people who prosecute the crimes, (crossover talk). It feels like you're the, you're the former, but you'd mentioned this PPSC. Talk about that, because at some point, you do hand over the case to this, you, you described it as a new department created, walk us through that a little bit, because I wasn't aware of that.
Nicola Pfeifer 06:53
We do. So, back in 2006, that's when PPSC was created, were modelled, or they are modelled after the U K's model of prosecution. So, they're headed by the Director of Public Prosecutions. No, it's an entirely separate department. Okay, so yeah, so it was created, essentially, to create, to have a real division and an independence in terms of prosecutions. So, not to be influenced politically or in any other way the Prosecution Service conducts itself based on its own rules. So, the way it works is that the Competition Bureau, much like the Canada Revenue Agency, Canada Border Services, other federal departments, they refer, so we refer as the Competition Bureau files to the Prosecution Service, and they decide whether or not they're going to prosecute. So, we put together something that's called a Report to Crown Counsel, that lays out all of the evidence, all of the facts, everything we know, all of our evidence gathering, techniques that have taken place in the case, and we put it all together for prosecutorial review. They then apply the prosecution test, which is one, is there a reasonable prospect of conviction? And secondly, is it in the public interest to prosecute? So, (crossover talk), Okay, (crossover talk). Is that under the Justice Department is that (crossover talk),
Michael LeBlanc 08:32
Like, you would know, you would go into this process, knowing that those are the kinds of two milestones of the two touchdowns or fence posts, whatever you want to call them. So,
Nicola Pfeifer 08:39
Right.
Michael LeBlanc 08:40
I would suspect that when you create the case, you would present, you would present it in the framework saying, well, does it meet these two standards,
Nicola Pfeifer 08:48
It certainly helps a great deal if you have a lot of involvement between your prosecutors and your investigators throughout the investigative stage. And throughout the creation of that Report to Crown, that will save any big surprises when you actually submit your report and receive, they write what's called a charge approval memo that essentially analyzes everything that we've told them and comes to a conclusion about which charges we might recommend charges of various kinds and then PPSC it's entirely within their purview to deci-, to decide what's going to be charged, who is going to be charged and what's not.
Michael LeBlanc 09:32
Got it. All right, well, thanks for that. That's a lot of things. Some things I knew a lot of things I didn't know, and I suspect it's the same for, for the audience. All right let's move on to deceptive marketing, which is you know, I've been a marketer my whole life so I'm very familiar. I think I’m, I thought, very familiar with the concept. And what I want to understand today with you, is you know, this, this how the Bureau sees deceptive marketing. I mean I, I know this, this idea of, of marketing puffery, right? What's the kind of this, where does it cross that line between, you know marketing, ambitious marketing, or and deceptive marketing help us, help us understand how you define deceptive marketing and then chalk the field for us a little bit?
Nicola Pfeifer 10:15
Sure. I think a good starting point is the general provisions that we have in the Competition Act, which is our governing legislation, both on the civil side and the criminal side. So, the general prohibition is against making materially false or misleading representations in the promotion of a product or a business interest. Material, so, just to break that down a little bit, material means it has to be about something important. So, the analogy that I like is the windshield wipers on a car. So, if you're buying a car, and you're told, these are the best windshield wipers on the market, there's nothing better. And it turns out, everything else that's been described about that car is accurate. But the windshield wipers are really not great. They're kind of bottom of the barrel, you know, nothing special at all. So, the question there, you'd have to ask is, is, are those windshield wipers, the misrepresentation that was made about those windshield wipers, material? How much does it matter to the consumer at the end of the day? So, just to stay with the false or misleading aspect for a moment, to put it simply? False is easy to evaluate. So, the representation is X. The truth is Y, X and Y are different, that's false,
Michael LeBlanc 11:46
Right? It says the windshield wipers are intermittent, but they don't do that. That's kind of black and white, sort of, right?
Nicola Pfeifer 11:53
Yeah, yeah, yeah, I think, (crossover talk),
Michael LeBlanc 12:02
They claim to do something, and they completely don't do it. (Inaudible) Is that,
Nicola Pfeifer 11:56
Right, right, exactly. Now misleading, is a lot trickier. So, that's where the rubber hits the road for many of our cases, misleading often comes down to a series of issues with a promotion. So, it might come down to the wording, the literal meaning of the words. But it also is going to come down to images, and various marketing tools that you might see sort of put together on the internet or even deceptive mail is still a thing. Believe it or not today, although the vast majority of the conduct is on the internet. So, what, where we do the vast majority of our work is in the misleading area.
Nicola Pfeifer 12:28
So, you raise the issue of puffery and sort of marketing versus deceptive marketing. I think in terms of deception, you, you, you really just sort of back up and think about whether or not what is being disseminated is accurate. So, is it true? Sometimes that can, you know, be a wishy-washy area, but it's up to marketers to be as upfront as possible about what they are offering to the public. Puffery, like the example of the best coffee in the world. So, if I'm marketing the coffee, and I say this is the best coffee in the world, most people know that they can take that with a grain of salt. Now let's juxtapose that with the best coffee in the world, according to the Coffee Association of North America. Now you're getting into detail. And one thing that's really important that I'm going to talk about in just a minute is the general impression. So, what is the general impression being conveyed by your representation? That's where you always have to come back to.
Michael LeBlanc 13:59
Yeah, it's pretty interesting. I mean, nested in all this and you, you touched on it briefly is in the judgement, right. So, and I guess within judgement is this concept of you know, this concept of the average consumer what do you, what do you lawyers say, "the man on the Clapham omnibus", right? You know, what would the average person think about that? Now, you guys are not average people, right? First of all, you're more, you're way more educated than, than the average. But at the same time, you know, you're in this business, you're still consumers, but how do you, how do you draw from your experience and, and what the average consumer is thinking?
Nicola Pfeifer 14:37
Sure. That's a really interesting area because we have debates amongst ourselves, you know, at work regularly about different kinds of promotions and what should be taken from them. But what we always have to go back to is now the Supreme Court of Canada told us who the average consumer is supposed to be. So, who do we consider that to be? And they call them credulous and inexperienced. So, I know.
Michael LeBlanc 15:34
Okay, okay.
Nicola Pfeifer 15:36
Not super flattering. But before everyone gets upset with the Supreme Court of Canada, I think this low bar is a really good thing. Because what it means is that deceptive promotions are going to be evaluated, according to a public that is not professional, you know, marketing consumers, that's not what they exist for. People have busy jobs, they have kids, they have ailing parents, they're, you know, often have both. They have pets, they have jobs, they have cars that are breaking down, they don't, you know, have the time and the energy to pour all of their energy and resources into evaluating what a promotion really means at the end of the day. So, it's really a good thing. At the end of the day, the Supreme Court calls the average consumer or they're not calling the average consumer credulous in an experience, they're saying, that's who legally we should consider the consumer to be, because they just don't have time to be considered experts. And nor should they.
Michael LeBlanc 16:18
Sure. And that I guess, ladders up to this idea, that concept of the general impression, take us through that.
Nicola Pfeifer 16:24
That's right. So, a general impression is really what you take away from a promotion, after viewing the whole thing. So, often, when I'm interviewing consumers, I'll ask them when you got off the phone, or when you stepped away from your computer. What did you think you had just agreed to? And I think that's key. Because again, you know, when you are reading, you know, I get you're also a bad example of the average consumer. But let's say, you know, my neighbour, if he's sitting down, and he's reading a promotion, he's not making a list of you know, well, this, this, is this puffery, is this, you know, false, is this misleading? Is this deceptive, that's not what they're doing. They're reading something quickly. And they're taking away a general impression,
Michael LeBlanc 16:45
Right.
Nicola Pfeifer 16:46
Of what promotion means. So, a good example of that is the free trial world. So, if you open up if you, often you're not opening it up, it's, it's a pop up, or it's sort of appearing before your very eyes without you looking for it. And it says, free trial, zero risk, only the cost of shipping and handling, you know, no hassles, all of those sort of buzzwords and, and phrases. But yet in the terms and conditions that are usually cleverly hidden, or at least difficult to understand. There, it explains that the terms of the offer, actually, in 10 to 14 days, you're going to be charged $200, which is the full cost of the product. So, that's a good example of the general impression, you think, because of all kinds of banners and you know, splashy decals and, and terminology use that it's free, or at least very, very low cost, like $4.99 for shipping, and you will end up paying $200. So, that general impression, that's what is key, and it's actually listed, it's described in the legislation. That's how important it is.
Michael LeBlanc 18:34
Let's talk about the difference between civil, and criminal. Do you, do you pursue both? And, and who decides, which direction it goes? And, and walk us through that?
Nicola Pfeifer 18:43
Sure. So, we do have, so our general misleading provisions are both civil and criminal. Often, we'll take a case on a dual track, which means we haven't quite decided where you know which track is going to end up on what makes a case criminal as opposed to civil is when you move into the criminal realm. You're talking about, you know, real knowledge, real knowingly or recklessly is the, the legal term, (crossover talk),
Michael LeBlanc 19:18
Your burden of evidence on criminals is much higher than civil as well, right. So, (crossover talk),
Nicola Pfeifer 19:21
That's right, beyond a reasonable doubt. Whereas civil is the balance of probabilities, which is essentially 51%. So, you're into the criminal realm if your conduct is particularly egregious, for example, then none of these are, are, sort of slam dunks, every case is sort of evaluated according to a number of factors. Have you been getting complaints for a long time on the same issues and you're not fixing the issues? Are there a number of investigative agencies who have written to you over the years and said, you know, we have a real problem with this part of your promotion or that part of your promotion and nothing has been done. That's when you really get into trouble on the criminal side. And more and more, these cases are global, there once in a while, you'll get smaller cases. And of course, there are many small civil cases. But certainly, on the criminal track, they're usually disseminating promotions in one form or another across various countries. So, we talk, investigative agencies get together regular-, regularly, and they talk about these problems. So, you will no doubt know when your counterparts in other countries are dealing with the same entity and having problems with it.
Michael LeBlanc 20:45
From the, give me a sense of, give the audience a sense of what captures your attention, like you open up the newspaper on a Saturday and you kind of, you probably look at newspapers and flyers and stuff with a different lens than the rest of the average population. Is that part of it? You mentioned kind of complaint driven or, or talk about that for a bit? What, what, what does it take to get on your radar screen from what you do?
Nicola Pfeifer 21:08
Yeah, sure. So, those meetings, those, those partnership meetings that we have, that is a huge source of problematic conduct for us. So, we have domestic partnerships, and then we have international partnerships. So, a lot of our files come from there, also complaints. So, we have our own complaint system, we pay a lot of attention to the Canadian Anti-fraud Centre, complaints, as we do the Federal Trade Commission that is based in the US, but they have a really terrific complaint system that incorporates complaints from the Better Business Bureau, all over North America, as well as the Bureau's complaints. So, that's a bit of a one-stop shopping, sort of place for us to see what sort of conduct is problematic in the marketplace. You know, and, and also, I, you know, this is a job where it's really difficult to leave your work at the office, because you just see this conduct everywhere, right? Like it's, it's hard to get away from it. So many, many files come from, you know, just enterprising officers who, who see conduct that's, that's,
Michael LeBlanc 22:23
I saw an ad on the bus, or I saw some of this on the subway or,
Nicola Pfeifer 22:27
Yeah.
Michael LeBlanc 22:28
Whatever, right. You're, you're, you like all of us are surrounded by media of both terrestrial digital and all others, right.
Nicola Pfeifer 22:34
Yeah. Yeah. And, and, yeah, and we're also consumers, so we get, you know, we, we are sort of victims, so to speak of, of conduct ourselves, whether it's civil or criminal or, or, or where it lands on that spectrum. I was going to get into sort of various specific kinds of conduct that we see that we fo-, that are, you know, generally a, a subject of our focus these days. So, we talked about the general provision prohibition against false or misleading representations. So, terms and conditions, that's big. Never think that you can hide the real terms of your offer in the terms and conditions. It won't work. It's been very specifically addressed by the courts many, many times, you have to pay attention to the general impression. And the thing that really hits you in the face when you initially see that promotion.
Michael LeBlanc 23:34
(Crossover talk), You can't bury the lead as, as we would say, in the media business, you can't bury the lead.
Nicola Pfeifer 23:39
Exactly.
Michael LeBlanc 23;40
The fact that this offer expires in 35 seconds can't be the 200 things in terms of conditions that needs to be,
Nicola Pfeifer 23:41
Absolutely.
Michael LeBlanc 23:42
It's a, I guess, you would, you would describe that as whatever is material about the offer needs to be in plain language, right up front.
Nicola Pfeifer 23:53
Yeah. Yeah. And, you know, I think, I mean, there's always, there's always sort of trickier areas, but I think we're all especially people that are sort of professionals in the marketing world. You know, when you're kind of lying by omission, right? You can't, you know, when you're leaving information out that might be central to the consumer's decision to take advantage of your offer.
Michael LeBlanc 24:19
What about, what about radio ads? So, we, we, there was a time when you'd run a radio ad, and there'd be terms and conditions to whatever you're talking about. And you'd, you'd hear that fast talking, narrator zip through, like a bunch of terms and conditions. It feels like and I've done this myself is that you say listen, terms and conditions are available online, go see that. That as I understand it, hopefully, that's acceptable. Like the years, you know, we've got a sale on this week. There's probably some terms like maybe there's some exempted products, go online, and you can read about all that, as opposed to smashing into a 32nd ad, these fast talking stuff. So, talk about that for a little bit.
Nicola Pfeifer 24:54
Well, I think then what you'd have to pay attention to is in your radio spot where you are describing, you know, your fantastic offer, you've got to put the whole picture in there, you know, back to the general impression. So, if you say slowly and clearly that this is free, and then you know, like you said this sort of comical, extremely fast talking sped up, finish to the commercial, where there are all these sort of terms and conditions like quickly thrown out there and nobody's understanding them or the reference to please check out our website. That will be problematic if you're leaving things out of the general message, the main message being conveyed that are central to the decision to take part.
Michael LeBlanc 25:43
Right. Okay, got it. I got it. We've talked, you mentioned protecting, let's talk about, I don't know, discarded the other side of the coin. But you're also here to protect retailers from deceptive marketing, talk about your efforts there. You mentioned fraud week, so talk about that.
Nicola Pfeifer 25:59
We are so it's a, it's a month, so it's Fraud Prevention Month, it is every March. And we work with our partners, Canadian and international and basically, we pick a specific area to focus on just so we can sort of highlight something in particular. And that's always conduct that's particularly problematic leading up to Fraud Prevention Month. And that is, we're seeing with our partners sort of across the board. And then we basically, we have a big launch, the Bureau does with the Better Business Bureau, we participate with our partners at the Canadian Anti-fraud Centre, which is part of the RCMP or funded by the RCMP, the OPP and the Bureau. And we just try and get simple messaging out to consumers that we hope resonates, and we really try and get them talking about it. So, I think that's key.
Nicola Pfeifer 26:41
The United Kingdom has a really terrific campaign that they've used for a number of years called Take Five. And I refer to that quite regularly in everything that I do to do with Fraud Prevention Month. And it means take a minute, all of these deceptive representations, all of these frauds have a rushed element, they have a time sensitive element almost all the time. And you see that with the countdown clocks, when you're ordering things online, they're, you know, only this much time left, only that many sweaters left, you know that kind of stuff. So, Take Five is meant to sort of remind people that I always say the more serious the thing is that someone's trying to get you to do basically, the more money they want, the more that Take Five might be five hours or five days or time to call your neighbour. Don't believe them when they say, you know, the world's going to fall apart if you don't take advantage of this in the next few minutes.
Michael LeBlanc 28:03
Got it? (Crossover talk), go ahead.
Nicola Pfeifer 28:06
So, Fraud Prevention Month is one of those things. And then I'd like to talk about a few specific frauds that tend to target businesses that I think some of your listeners might, might, (crossover talk),
Michael LeBlanc 28:21
Hopefully not be too familiar with, but (crossover talk),
Nicola Pfeifer 28:23
Yeah. Well hopefully not and, and hopefully after this, they'll, they'll sort of learn to, to spot the, the red flags. Government impersonation generally, so, that's a big one. It doesn't necessarily mean that the fraudsters are saying, I am an employee with the Government of Canada, and I am sort of, so it's not a direct impersonation. But often they'll do things like include a lot of Canadian flags, or a lot of checkboxes, or lists of things to make sure the recipient has remembered to do, which is really reminiscent of tax forms when you think about it, and other forms that you might be sent that actually do require some sort of action on your part when the government reaches out to you.
Nicola Pfeifer 28:43
That government impersonation can take various forms, including one that is sort of comical, it's like the opposite of marketing techniques where it's very boring looking, it's black and white or no colours. There might be a barcode in the corner, or something that sort of implies that this is something that the government is sending out. And there are lots of them and they're sort of tracking them with this barcode etc.
Nicola Pfeifer 29:01
Often what we see with government impersonation in black and white form is intellectual property renewal. So, you actually are getting your IP renewed most of the time but not always, you know, not every scam is created the same way. But for a really high price. But they make it look like you are receiving this notice, this reminder notice from the government. So, that's one to watch for. Emergency kits, so, more and more discussions of climate change and the effect it's having on society. We see fraudsters capitalizing on the need to be prepared. And many files have revolved around some sort of promotion or messaging that says that the government is now requiring small businesses to have this particular kit, or you know, here and here it is, and we'll sell it to you for $600. And, you know, it's certainly not worth $600. But more importantly, it's not a requirement that is, you know, has been issued by the government.
Nicola Pfeifer 29:25
One other one that I want to highlight is directory listings, online directories, this used to come in hard copy form, you know, back in the day, and now, as you know, everything has moved online. And it's called the assumed sales technique, where they call and they say, oh, hey, it's so and so. And we're just calling to renew your advertisement listing, or used to be toner, back in the days of, of printing a lot.
Michael LeBlanc 28:40
Yeah, yeah.
Nicola Pfeifer 28:42
So, it might also have an angle of charity, they might be saying, you know that the purchase of this advertising is going to help the police or missing kids or firefighters or some group like that, when in fact, it's not. So, all of those things are things that we see typically, targeting small and medium sized businesses, there are some really nasty, much higher dollar amount frauds that are running around as well. When in doubt, Take Five, take a minute, have processes in place so that you know who orders the, you know, so called toner is always the same person, there's a record of it somewhere, talk to each other. And one thing that is really a simple message that I tried to sort of drive home during Fraud Prevention Month and all other outreach. And that's Google, or use your favourite search engine, to look up intellectual, intellectual property renewal, for example, and scam. You would be surprised at how much useful information you find just doing that simple act. So, do a bit of research, play detective. That's what we want people to do.
Michael LeBlanc 32:40
Take Five, take a beat, play detective, visit your local friendly search engine and add scam to the topics. Great advice. Now, just to close off, legislation is a living entity. And even for those listeners who may be steeped in the intricacies of deceptive marketing, there may be some changes that have happened or come up on the radar screen that we need to know about.
Nicola Pfeifer 33:03
Yeah, we, we have some terrific new amendments to the Competition Act on the civil side. So, on the civil side, we talk about administrative monetary penalties, as opposed to fines on the criminal side. So, on the civil side, deceptive marketing practices, so there's a new maximum penalty for individuals, and it's the greater of 750,000 or 1 million for each subsequent violation. And three times the value of the benefit derived from the deceptive conduct is a little bit reminiscent of nasty CRA penalties if anyone out there is familiar. And that's three times the value of the benefit from the deceptive conduct if that amount could be reasonably determined.
Nicola Pfeifer 33:23
Now previously, this was capped at 750,000 and a million for subsequent violations. So, that's one change to the individuals and then to the corporations. And that's per count. So, you may have several accounts that you're looking at. The new maximum penalty for corporations is the greater of $10 million, $15 million for each subsequent violation. And three times the value of the benefit obtained from the conduct. If that amount cannot be reasonably determined the maximum penalty will be 3% of annual worldwide gross revenue.
Michael LeBlanc 34:39
Yeah. That, that phrase the "greater of" and then wow, that 3% And are these in place today or is this pending? They are,
Nicola Pfeifer 34:48
They are, yeah. There are a couple of yeah, there are a series of amendments that will be coming into force, but this one has come into force already. Also, one other thing of note, we didn't really get into it. But for drip pricing, which is when you have a price, that is not really the accurate price, because a number of other charges are going to be added to it afterwards. So, the Bureau had quite a bit of success with car rental companies in this area. So, the new amendments confirm that representing a price that it can, sorry, that a customer can't actually attain, because there are mandatory fixed additional charges or fees, is a false represe-, false or misleading representation in and of itself, specifically. So, no longer under that general provision. And the one thing that to keep in mind this does not apply to charges or fees that are entirely government imposed.
Michael LeBlanc 35:54
Okay, that's either provincial or federal.
Nicola Pfeifer 35:57
Exactly. Yeah. They have to be genuine government fees, as in taxes, etc. Often, we will see files or cases where a fee is sort of vaguely described as a tax or a government as sort of mandatory government fee, when in fact, it's not. So, that has to be, we're only talking about genuine charges or fees from the government there.
Michael LeBlanc 35:57
Well, we fire hosed a lot of information at the, at the listeners in a pretty short amount of time, where can they go to learn more and keep up with the changes? Where, where's the best place to go?
Nicola Pfeifer 36:37
Sure. So, our website is full of a lot of useful information. So, it's at competitionbureau.gc.ca. We have something called deceptive marketing digests, that are really great resources. I know I look at them regularly for various reminders. And to (inaudible), think of former files that we've done in the area. There are four volumes, and they include a lot of useful topics like disclaimers, online reviews, which is a big issue these days that we're trying to address more and more, influence or marketing, savings claims and others.
Nicola Pfeifer 3740
And also, in terms of compliance, I think it's really important for businesses to be aware of the need to have a compliance program. So, there is lots of useful information on the Bureau's website on how to design an effective compliance program. So, you don't just want a compliance program, you want one that actually works. And there, there's quite a bit of good information on what components of a good compliance program look like.
Michael LeBlanc 37:51
All right, well fantastic.
Nicola Pfeifer 37:52
Where I would lead you, yeah.
Michael LeBlanc 37:54
All right. Well, what a great first episode introducing the series. So, very interesting things I knew, things I didn't know and I'm sure the same for our listeners. Thanks so much for joining me on The Voice of Retail podcast. I wish you continued, interesting work, I guess. And, and, and thanks for what you do. And thanks for joining me on the podcast and I wish you the best rest of your day.
Nicola Pfeifer 38:16
Thanks Michael, my pleasure to be here.
Michael LeBlanc 38:17
Thanks for tuning in to this special episode of The Voice of Retail. If you haven't already, be sure and click subscribe on your favourite podcast platform so new episodes will land automatically twice a week.
And check out my other retail industry media properties, the Remarkable Retail podcast, Conversations with CommerceNext podcast, and The Food Professor podcast with Dr. Sylvain Charlebois. Last but not least, if you're into barbecue, check out my all-new YouTube barbecue show Last Request Barbecue with new episodes each and every week.
I'm your host, Michael LeBlanc, President of M.E. LeBlanc & Company and Maven Media. And if you're looking for more content or want to chat, follow me on LinkedIn or visit my website at meleblanc.co.
Have a safe week everyone.
SUMMARY KEYWORDS
bureau, consumers, deceptive, government, windshield wipers, conduct, marketing, called, crossover, promotion, bit, competition, terms, area, criminal, files, fraud prevention, misleading, general, regional office