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.
|Section 52 and paragraph 74.01(1)(a)||False or misleading representations|
|Sections 52.01 and 74.011||False or misleading representations in sender information, subject matter information, electronic messages and in locators|
|Section 52.1||Deceptive 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 74.02||Use of tests and testimonials|
|Section 53||Deceptive notices of winning a prize|
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