Navigating regulatory rules during the pandemic

Apr 23, 2020
CASL Privacy

The pandemic has impacted the economy, our way of life and the regulatory environment. In this blog we highlight key areas of importance to help marketers navigate the rules during this unprecedented time.

CASL and COVID-19 related messages 

As Canada responds to the COVID-19 outbreak, many organizations are notifying their customers and clients of COVID-19 related information. CASL, Canada's anti-spam law, prohibits sending commercial electronic messages (CEMs), including emails and texts, unless consent and other requirements are met. It's important to remember that CASL only applies to electronic messages of a commercial nature. If you are not sending an email to solicit business, CASL would not apply. However, CASL still applies to indirect solicittions, including messages with a combined purpose of providing a COVID-19 health notice and soliciting business.

Exemption for fundraising messages from charities

CASL applies to not-for-profits and charities engaging in revenue-generating activities, including when fees are charged for products, services, memberships, events or other program activities. However, there is an exemption for CEMs sent by (or on behalf of) a registered charity where the primary purpose of the CEM is to raise funds for the charity.

Obligations around personal information during the pandemic

During the pandemic, your organization may find itself handling additional data, including health and other personal information. This may come at a time when you are adjusting to new work processes, including remote work.

The Office of the Privacy Commissioner of Canada (OPC) has issued guidance to help orgnizations across all sectors understand their obligations with respect to personal information during the COVID-19 outbreak. PIPEDA continues to apply to organizations who are subject to it in normal times. However, during a public health crisis, there are some circumstances under which your organizations may collect, use or disclose personal information without the consent of the individual. Even broader powers could be extended when an official public emergency is declared.

Cybersecurity is another important part of the equation you need to consider. Given the greater volumes of data being handled remotely, and new threats emerging from cyber criminals aiming to take advantage of security vulnerabilities and uncertainty, now is the time to ensure you and your organization's security practices remain strong. For more on privacy and security obligations during the pandemic, check out our recent blog.

With Privacy Awareness Week in Canada starting on May 4, the CMA will be providing tips throughout the week across our social media channels and website. Be sure to follow us and check out the privacy and security resources listed on Marketing Connected.

False and misleading advertising

The Competition Bureau issued a statement reminding companies and individuals that it will scrutinize any evidence of violation of Canada's competition laws, including deceptive marketing practices, during the COVID-19 pandemic. A few things to keep in mind:

  • False or misleading health claims about a product's ability to prevent, treat or cure the virus are not permitted,
  • Claims must be substantiated prior to the claim being made and cannot be overly exaggerated or vague, and;
  • The Bureau's website provides advertising do's and don'ts that apply across any medium (n store, online, print, broadcast, etc).

We recommend that you review your messaging prior to sending out any communications and engage your regulatory or legal team early in the process to ensure your materials comply.

Competitor collaborations

The COVID-19 pandemic has had a dramatic effect on the competitive dynamics of the Canadian market, as companies respond to shifts in supply and demand and other disconnects.

The Competition Bureau announced its approach to competitor collaborations during the pandemic, noting it will refrain from exercising scrutiny when companies have a clear imperative to collaborate in the short-term to respond to the crisis, such as to ensure the availability and affordability of critical goods and services. At the same time, there will be no tolerance for attempts to abuse this flexibility.

Businesses looking to engage in these types of collaborations should:

  • Remember that Canada's competition laws continue to apply and include strict prohibitions related to anti-competitive agreements,
  • Review the Competitor Collaboration Guidelines, and;
  • In cases where greater certainty is needed, send requests for informal guidance by e-mail to the Bureau, ensuring to submit the required information as outlined in their statement.

Fines are substantial, so companies are advised to seek legal counsel prior to engaging in any activities of this nature.

In addition to the Competition Bureau's focus on collusion, provincial governments, to varying degrees, are prohibiting the charging of unfair prices for necessary goods during the pandemic. In Ontario, consumers are being asked to report price gouging during COVID-19, with fines ranging from $750 for individuals up to $10 million for corporations. Necessary goods include personal protective equipment, non-prescription medications, disinfecting agents and other personal hygiene products, such as soap and toiler paper.

Keep connected and stay informed

The CMA team is available to keep the marketing community connected and informed at this unprecedented time. If you have questions or require further information, please check out CMA Helps, subscribe to our Top 5 picks e-newsletter through MyCMA or get in touch with us.

We also encourage you to read and share with your networks our comprehensive charts outlining the available COVID-19 federal support measures for businesses and individuals.

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Florentina Stancu-Soare

Director, Public Affairs and Regulatory Standards Canadian Marketing Association





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