The role consumers and companies play in advertising
If a company makes representations about an attribute of its product, it has a responsibility to ensure the claim is true, says Toronto lawyer Sara Zborovski.
While lawsuits related to false advertising claims tend to be more common in the U.S. than in Canada, Zborovski says it’s a topic companies in this country must also be aware of.
Zborovski was responding to recent news that a group of women unhappy with the lifespan of a line of long-lasting lipsticks sued cosmetic brand Maybelline, the Wall Street Journal reports. Read the Wall Street Journal
“We are seeing more and more false advertising claims in the food industry, especially in the United States,” says Zborovski, partner with Gilberts LLP. “In the cosmetics industry, these claims have not yet been as common, and especially not in Canada.”
The women sued the makeup company in Manhattan federal court for false advertising, saying Maybelline’s claims about its Super Stay 10HR Stain Gloss and Super Stay 14 HR Lipstick products are “misleading, inaccurate and deceptive,” the Wall Street Journal reports. The lawsuit alleges the lipstick and lip gloss do not last for hours as advertised, but “wear off and fade after only a few hours of wear.”
Zborovski says the degree of difficulty in proving whether advertising is accurate or inaccurate depends on the type of claim.
“The company would have to have and (if requested) produce evidence that their claims can be substantiated,” she says. “Whether or not it is easy for the consumer to determine accuracy depends on the type of claim.”
Zborovski points out a claim like “long lasting” is different than a claim like “all natural,” which is more scientific. It may be more difficult to prove that something is or is not “long lasting” because of the subjective nature of the claim.
In Canada, the onus lies with the company to advertise within Health Canada and Competition Bureau regulations, she says.
“Recent crackdowns by the Competition Bureau on false advertising claims have lead to more claims and higher penalties, although not yet in the cosmetics industry,” Zborovski says.
The Guidelines for Cosmetic Advertising and Labelling Claims outline acceptable and unacceptable cosmetic claims for advertising and product labels and were designed to help in the development of advertising messages, she says.
While it’s not uncommon to hear of a consumer that’s unhappy with a product, Zborovski says like all litigation, whether to elevate the complaint to the court system must be decided on a case-by-case basis.
“It’s a cost/benefit analysis to be made by individual consumers in individual cases,” she says.