The general impression test

When deciding whether a representation is false or misleading, a court is required to take into account the general impression conveyed by the representation, in addition to its literal meaning. This is known as the “general impression test.” The following are examples of messages that are likely to create a false or misleading impression, thus failing the test:

  • The marketing message is partly true and partly false or can have two meanings, one of which is false.
  • The marketing message is literally true but misleading because it does not include or state essential information that would likely influence consumer behaviour. One example is a “free trial” offer that locks you into a monthly renewal fee if you don’t return the samples within a specific time frame.
  • The marketing message is literally or technically true but creates a false or misleading impression. For example, the results of a product test may not be significant, but the marketing message makes it seem like they are.
  • The text of the marketing message is literally true, but the accompanying photo or illustration creates a false or misleading impression. For example, the ad shows a product that is different from the product being advertised.
General impression test that applies to the criminal and civil provisions of the Competition Act
Section, subsection/paragraphProvisions
Section 52 and paragraph 74.01(1)(a)False or misleading representations
Sections 52.01 and 74.011False or misleading representations in sender information, subject matter information, electronic messages and in locators
Section 52.1Deceptive telemarketing
Paragraph 74.01(1)(b)Performance claims not based on an adequate and proper test
Paragraph 74.01(1)(c)Warranties and guarantees
Subsections 74.01(2) and 74.01(3)Ordinary selling price
Section 74.02Use of tests and testimonials
Section 53Deceptive notices of winning a prize

Further reading