Since 1996 Wrigley Canada has been fighting for the right to promote its EXTRA gum as having cavity fighting properties
Topic: Food
Who: Wrigley Canada
When: May 2000
Where: Federal Court of Appeal of Canada
What happened:
Since 1996 Wrigley Canada has been fighting for the right to promote its EXTRA gum as having cavity fighting properties. The Canada Radio-Television and Telecommunications Commission (the Canadian equivalent to our Broadcast Advertising Clearance Centre which pre-vets all TV advertising before it is broadcast) had rejected a TV script making this claim and ensuing discussions with Health Canada led to the TV ad wording being amended to the following
"New dental studies prove chewing Sugar Free EXTRA after a sugary snack can actually reduce the acids that cause cavities."
But this was not the end of the story. A competitor complained and on reviewing the wording the authorities took the view that the words constituted a drug claim which was not acceptable for a mere food. Wrigley decided to establish the position once and for all by seeking a declaration from the Federal Court. Unfortunately, the tactic backfired when the Court agreed with Health Canada's assessment. This means that while EXTRA packs can still state "Won't cause cavities", the TV claim had to go.
Why this matters:
The Canadian law here is very similar to that in the UK, which is contained in the Medicines Act 1968. In Canada most products can be rendered "drugs" for regulatory purposes if they are represented in advertising as for use in the diagnosis, treatment, mitigation or prevention of a disease, common disorder or abnormal physical state, or its symptoms in human beings. Our own Medicines Act is similarly worded.
Extra care should always be taken therefore with a reference to a product's supposed impact on any aspect of a person's physical or mental condition, otherwise the product will instantly be transformed into a drug, requiring licensing which would almost certainly not be available for it.
Contributor:
Our thanks for this item to go to Wendy Reed of Heenan Blaikie Toronto, the Canada member of the Global Advertising Lawyers' Alliance, who can be e-mailed on wreed@heenan.ca
