Assessing General Impression under the Competition Act: The Credulous Man Who Was Never There

Abstract

When deciding whether an advertisement is false or misleading under the Competition Act, one must take into account both the "general impression" and literal meaning of the representations at issue. Historically, the dominant approach taken by courts for the purposes of the Competition Act was to assess the advertisement from the perspective of the "average person" of the intended audience. For some commentators, the Supreme Court's 2012 decision in Richard v. Time Inc. signalled the end of the average person's role as the arbiter of truth and accuracy under the Competition Act, and it was argued, the "credulous consumer" would soon step in. However, neither a historical perspective nor cases decided after Time are supportive of a wholesale adoption of the viewpoint of a naïve consumer who is not overly sophisticated and accordingly, perhaps more easily misled. Rather, the legislative history and relevant jurisprudence under the Competition Act remains supportive of viewing the general impression from the perspective of an average consumer of the relevant product or services.