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Complain effectively: What we can do about misleading marketing claims

During the Evidence Matters campaign in March 2023, many asked about what they can do when they see false advertising or exaggerated product claims. Bill Jeffery, the Executive Director of the Centre for Health Science and Law and member of E4D’s Network of Experts, weighs in.
Complain effectively

The COVID-19 pandemic occasionally directed Canadian and worldwide attention to misleading and baseless claims that certain vitamins and drugs designed for other purposes could prevent or cure COVID-19. Former U.S. President Donald Trump’s repeated promotion of the antimalarial agent hydroxychloroquine and the cringe-worthy recommendation to inject bleach intravenously topped the list of bogus COVID-19 countermeasures. Both are bad, bad ideas—the first according to a recent Cochrane systematic review of the literature, the second according to the World Health Organization (WHO) and Chemistry 101.

But, the truth is, misinformation and misdirection are the stock-and-trade of so much commercial advertising. Diplomatically known as sales puffery and various hues of whitewashing, commercial dishonesty is illegal, plain and simple. At best, advertising does not acknowledge product defects unless expressly required by law and, even then, disclaimers often do little to quell expectations raised by the main pitch.

Deceptive advertising hurts the financial and sometimes physical well-being of consumers, and unfairly hurts the commercial interests of honest companies that play by the rules. According to the WHO and the Seattle-based Institute for Health Metrics and Evalaution’s estimates for Canada, nearly half of all deaths in Canada and worldwide are attributable to health-eroding consumption of marketed products, especially food, tobacco, alcohol, pollution-emitting products, and breastmilk substitutes.

Companies are financially motivated and even legally duty-bound to shareholders to vigorously promote their products and services. Theoretically, this must be done within the limits of the law; courts have long recognized common law torts of deception and negligent misrepresentation, fraud, and companies’ duty to warn prospective customers about health risks. The federal Competition Act, the Food and Drugs Act, and some provincial legislation, like Ontario’s Consumer Protection Act prohibit misleading and deceptive representations about goods and services. As of June 2022, the federal Competition Act authorized fines for corporations as high as the greater of:

$10 million (or $15 million for each subsequent violation); and
triple the value of the benefit obtained from the deceptive conduct. If that amount cannot be reasonably determined, the maximum penalty will be 3% of the company’s annual worldwide gross revenues.
The threat of disgorging profits could really incentivize companies to be truthful, especially if there is a high likelihood of successful prosecution every time. However, a number of barriers impede this outcome.

First, enforcement generally depends on consumers making formal complaints, regulators prosecuting, and courts imposing fines—a process that typically takes much longer (years) than the duration of typical ad campaigns. This process also requires defendants with deep enough pockets to hire a lawyer, go to court, and risk losing and even paying some of the company’s legal fees. This is a much-ballyhooed and little-remedied problem in the legal system limiting regular participation to public servants with secure incomes or private firms that are financially well-served by commercial clients.

Second, unlike for individuals accused of speeding or illegally parking, fines for deceptive advertising are generally not imposed until after a trial (often after the damage of the deception has been done), and have typically been far less than the maximums. Jail time for corporate advertisers is rarely, if ever, imposed. Even then, companies can fight back and delay enforcement for years which can intimidate all but the biggest, richest government prosecution offices.

Finally, Canadian prosecutors have the discretion to ignore complaints and may do so if public pressure is low, and law-and-order politicians rarely trumpet mandatory minimum sentences for consumer protection “crimes.” All in all, consumers are often left to fend for themselves.

Scientists and others with science literacy skills can vet claims by studying peer-reviewed literature, especially by seeking out systematic reviews and meta-analyses on, for instance, the safety and effectiveness of health products at, for example, PubMed and Cochrane Library. Those types of studies carefully consolidate knowledge gleaned from many studies. But life is too short to do this every day for every claim. Sometimes, hundreds or even thousands of studies evaluate products and not all journals require authors to declare financial conflicts of interest that might undermine their objectivity. This often makes properly reviewing the evidence an unrealistically painstaking and time-consuming process.

It is far better to choose a reputable source of information in advance (e.g., the WHO or Consumer Reports) than to let the likes of TikTok influence your thinking and drive your personal fact-checking agenda.

Of course, protecting yourself doesn’t improve future company behaviour and leaves everyone else unprotected.

But, the tide seems to be turning. On March 15, 2023, the federal Bureau of Competition—the independent agency that enforces the Canadian federal Competition Act—made 50 recommendations to the federal government to better enforce the Act. Among them, embedding in the Act the Supreme Court-approved standard of the “credulous and inexperienced consumer.” This change seeks to better protect buyers and hold companies accountable for misrepresentations and deception in the marketplace.

And if more formal complaints lead to even small fines, especially if meted out repeatedly and widely published, companies may better toe the line with their advertising claims in the future. Grousing about corporate misdeeds around the dinner table, in class, or at the water cooler won’t matter a bit unless it leads to a widely publicized successful prosecution.

So if you do encounter a misleading marketing claim, complain effectively.

You can make formal complaints about misleading advertising for:

Pharmaceutical drugs and other health products
Competition (misrepresentations and deception generally)
Most provincial consumer protection offices

Bill Jeffery is the Executive Director and General (Legal) Counsel for the Ottawa-based Centre for Health Science and Law, a non-profit health advocacy organization that focuses on food and nutrition law reform, the use of the best available evidence, and conflict-of-interest safeguards in research and public-policy making. CHSL accepts no funding from industry except trivial amounts for the few that register to attend our conferences. Subscribe to Food for Life Report

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