Are performance claims prohibited?
No. However, in addition to the “general misleading advertising” provisions of the Act, paragraph 74.01(1)(b) prohibits any person from making any representation to the public about the performance, efficacy or length of life of a product that is not based on an “adequate and proper test”. The testing or verification of any performance claims must be made before a claim is made and the onus is on the person making the representation to prove that the performance claim is based on an adequate and proper test. While performance claims can be a legitimate means to distinguish goods or services from competitors, it is important that adequate and proper testing is performed (or appropriate statistics or support are obtained) before a claim is made. The federal Competition Tribunal has recently held that there is a non-exhaustive list of factors to consider whether a test is “adequate and proper” and that the testing does not need to be 100% reliable or the best scientific testing that could
