Decriminalization of misleading advertising is just one change that could result if Canada’s Competition Act, last revised in 1986, is amended.

Regular price claims in retail advertising and a crackdown on deceptive telemarketing practices are other key issues under discussion.

Consultation about proposed amendments to the Competition Act will cease this month to allow the Bureau of Competition Policy, a department of Industry Canada, to present its recommendations to the federal government in January.

The bureau tendered a discussion paper on the amendments this past summer, and, since then, several interested groups have made their views known.

Two committees of the Canadian Bar Association have made submissions and the Retail Council of Canada has issued a paper on behalf of its 6,500 members.

The main focus of Canadian Bar Association’s Media and Communications Law Section is the decriminalization of misleading advertising.

Under the legal system, these cases are expensive and time-consuming.

Criminal sanctions such as possible jail terms are considered to be too severe for misleading advertising, which often is committed unintentionally.

In its discussion paper, the Bureau of Competition Policy proposes that misleading advertising claims in most cases be handled as a civil procedure by the existing Competition Tribunal.

However, in some cases, the bureau still wants to reserve the right to prosecute under criminal law.

A Canadian Bar Association committee feels that total decriminalization of misleading advertising will level the playing field so the rules are the same in all cases.

The committee points out that even with total decriminalization, the bureau will still have the power of the Criminal Code to charge offenders.

Companies which continue to do misleading advertising or do not comply with the Competition Tribunal’s decisions can be charged with the criminal offences of fraud or contempt of court.

The Retail Council of Canada also supports the decriminalization of misleading advertising but has devoted most of its submission to regular price claims and section 52(1)(d) of the Competition Act.

The Bureau of Competition Policy’s paper describes the section in question as one that ‘prohibits materially misleading representations to the public concerning the price at which a product or like products have been, are, or will be ordinarily sold.’

Peter Woolford, senior vice-president of policy for the Retail Council of Canada, says the issue is ‘how retailers can make comparisons between what they call regular price and sale price.

‘There are substantial differences between what is current practice in the trade and how the Bureau [of Competition Policy] interprets their comparison between regular and sale prices.’

Right now, the bureau’s view is that regular prices are established primarily on a volume basis.

Retailers are proposing a time-based test that says the regular price of a product is the price at which it is offered for the majority of the time, at least half the in-store lifespan of the item.

Under the current volume test, to identify a price as a regular price, retailers must be able to prove a substantial volume of the product has been sold at that price.

Woolford says the Bureau of Competitive Policy has told the Retail Council of Canada that, in its view, a substantial volume means more than 50%.

He says the problem with this method is that during the lifespan of a product, several new ‘regular’ prices will be set as the product is reduced.