Sarit Mizrahi est étudiant dans le cadre du cours DRT 6903.

Advertising is an unavoidable part of our society. Wherever we turn our heads, we are somehow bombarded with advertisements, whether it is in the newspaper, in the metro, while strolling downtown – there is simply no way of getting around it, except for when we are under our own roofs. With the advent of the Internet and Smartphones, however, the degree of advertising that has managed to assault us within the confines of our own homes has significantly increased. It is impossible to check your e-mail or even make use of a search engine without having a number of banner advertisements flash before your eyes. This direct access marketers have to consumers is cause for concern, as it enables them to more easily engage consumers ultimately exposing consumers to a higher degree of false advertising.

A very recent example of such an occurrence was discussed in an article, dated September 9, 2011. Essentially, in the first ever example of false advertising in the mobile healthcare marketplace, marketers advertised that their iPhone apps could successfully rid users of their acne by the emission of coloured lights from their Smartphones which they were meant to shine on the affected areas of their skin for a few minutes each day. There were essentially two different apps that made this particular claim. The first, Acne Pwner, employed the slogan “Kill ACNE with this simple, yet powerful tool !”, while the second, AcneApp, advertised that “This app was developed by a dermatologist. A study published by the British Journal of Dermatology showed blue and red light treatments eliminated p-acne bacteria (a major cause of acne) and reduces skin blemishes by 76%.” The claims made by the makers of these two apps were investigated by the Federal Trade Commission (“FTC”), who concluded that they were entirely unsubstantiated. Furthermore, the FTC considered that AcneApp’s statement that a study published by the British Journal of Dermatology supports their app as an effective acne treatment is a false claim.

Based on the findings of the FTC, a settlement was made with both app creators. The settlement in question would prohibit marketers from claiming that their apps can successfully cure acne, as well as making any statements regarding “the safety, performance, benefits, or efficacy claims about any device, without competent and reliable scientific evidence” . Furthermore, the settlement requires Koby Brown and Gregory W. Pearson, doing business as DermApps (the creators of AcneApp) to pay a penalty of $14,294, and Andrew N. Finkle, doing business as Acne Pwner, to pay a penalty of $1,700.

The FTC’s immediate action with regards to the false advertising emitted by these app creators essentially mirrors the same abhorrence we possess towards false advertising in the province of Quebec and in Canada as a whole. False advertising has always been tightly regulated in our society and essentially serves to protect us against practices similar to the ones described above, and in the same manner as is achieved by analogous American laws and enforced by the FTC.

To begin with, sections 219 through 222, and sections 238 and 239 of Quebec’s Consumer Protection Act (“CPA”) specifically prohibit the use of false advertising with respect to any service or merchandise offered by a merchant, manufacturer or advertiser. More specifically in association with the particular situation outlined above, section 220 of the CPA explicitly restricts any merchant, manufacturer or advertiser from “falsely, by any means whatever, (a) ascrib[ing] certain special advantages to goods or services ; (b) hold[ing] out that the acquisition or use of goods or services will result in pecuniary benefit ; (c) hold[ing] out that the acquisition or use of goods or services confers or insures rights, recourses or obligations.” Furthermore, section 239 of the CPA states that “no merchant, manufacturer or advertiser may, by any means whatever, (a) distort the meaning of any information, opinion or testimony ; and (b) rely upon data or analyses falsely presented to the public”. In the same grain, section 52 of Canada’s Competition Act states that “No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect”.

Both the claims made by the two app creators therefore clearly fall under the prohibitions outlined in both the CPA and the Competition Act. Furthermore, AcneApp’s misuse of a published study violates both section 239 of the CPA, by relying upon data and analyses falsely represented to the public, and section 52 of the Competition Act, by making a false representation to the public so as to promote their product. Thus, in addition to being in blatant violation of American law, as is outlined by the FTC’s pursuit, the creators of these Acne apps violate Quebec and Canadian laws as well.

The brief outline of the legislation regulating false advertising demonstrates that such practices are, essentially, adequately protected within both Quebec and Canada as a whole. However, while we live in a society that demonstrates such a strong loathing of false advertising, the advent of the Internet, and the creation of an Internet marketplace, has served to increasingly expose us to this horrible practice. Though it is comforting to know that our government tries to protect consumers from false advertising to the best of its ability, the fact that even the utmost efforts on the part of our government cannot shield unsuspecting consumers from the scams developed by scrupulous merchants is a very harsh reality.