Uniquely Canadian Marketing Issues (Excerpt 3/3)

November 9th, 2015 | Brenda Pritchard and Susan Vogt,

Advertising and Marketing Law in Canada
By Brenda Pritchard & Susan Vogt

Lawyers Brenda Pritchard and Susan Vogt recently released the 5th edition of Advertising and Marketing Law in Canada. Published by LexisNexis Canada in association with ACA, it’s a comprehensive reference tool that will help advertisers and marketers better understand the breadth and complexities of Canadian regulatory law. This excerpt explores some issues that Canadian marketers should be familiar with, especially when dealing with U.S. clients.


There are few things that signify “Canadian” more readily than a Mountie.

Not surprisingly, advertisers like to use Mounties, not only in hit television series, but in Canadian ads or in ads for Canadian products that are directed to Americans. The mere appearance of a Mountie seems to have the same effect on Canadians as the sound of a bagpipe has on a Scotsman.

Enter the Royal Canadian Mounted Police Act,1 which prohibits the use of real or costumed RCMP officers in ads without consent from the RCMP. The Act also prohibits the use of the words “Royal Canadian Mounted Police” or “RCMP” or “Mountie” without the required consent.

Back in the ’80s and early ’90s, when clients wanted to use Mounties, we found the whole process of seeking permission to be consistently discouraging. The RCMP did not want to grant permission to use its name or RCMP officers in association with any particular product or service, in case it would be seen as endorsing that product or service.

Needless to say, the RCMP saw the error of its ways, and perhaps in an effort to stop advertising lawyers from badgering it, licensed the rights to Disney to administer on its behalf. The Disney reign lasted about four years until the RCMP decided that it could resume its licensing responsibility, without the appearance of implied endorsement or favouritism.

So, for the time being, you can obtain consent from the RCMP, for a licence fee, provided that your depiction of the Mounties is used in a manner consistent with its position and stature in our society. In other words, if your script has even the slightest suggestion that the Mounties are anything but perfect, you will likely not get consent.


The next most sacred Canadian symbol is the Maple Leaf. For most people, according to Industry Canada, the mere use of the 11-point Maple Leaf is synonymous with “Made in Canada”. Thus, use of the Maple Leaf on products which do not come from the Maple Tree (maple syrup) or are not made in Canada will likely be prohibited. The expression “Made in Canada” is only permitted on goods which not only “come into being” in Canada but also for which at least 51 per cent of the cost of raw materials and direct labour is incurred in Canada. Even if a product is entirely assembled in Canada with U.S. materials, if the cost of imported raw materials exceeds direct labour, you cannot call it “Made in Canada”, but you may opt for “Made in Canada with U.S. materials”.


As a result of serious illness and death caused by “foreign” tainted food ingredients in otherwise “Made in Canada” food products, effective December 31, 2008, unless “all or virtually all” of the contents of a food product are Canadian (thereby qualifying for a “Product of Canada” designation), “Made in Canada” claims for food products are acceptable for foods containing imported ingredients so long as “the last substantial transformation of the product” occurred in Canada, but the claim must be qualified. The two choices are “Made in Canada from domestic and imported ingredients” or “Made in Canada from imported ingredients”. With Canadians concerned about the safety of foreign-sourced ingredients, the previously indistinguishable differences between “Product of Canada” and “Made in Canada” may create a huge difference in the Canadian marketplace. See Chapter 13 for a more detailed discussion of “Product of Canada” and “Made in Canada” claims for food products.


In terms of the flag and royalty, section 9 of the Trade-marks Act2 prohibits the use of, in connection with a business, as a trade-mark or otherwise, any mark consisting of the Canadian flag, the Royal Arms, the Red Cross symbol and a variety of other things associated with the Canadian and foreign governments, the Royal family and other “public authorities”and official entities.

The section does not apply, however, if the consent of Her Majesty the Queen, or whomever the section was intended to protect, is granted.3 So, if your ad contains a flag, it better not be Canadian, British or Iranian. Yes, the section also protects the sign of the Red Lion and Sun used by Iran as its “Red Cross” symbol.

Section 9 of the Trade-marks Act also protects flags or arms or emblems of countries which have notified the Canadian Trade-Marks Office of their objection to their use. Interestingly, when asked if the U.S. flag could be used in Canadian advertising, the U.S. Consulate advised that no permission is necessary.

In Canada, if you want to use the Canadian flag for any type of promotion or advertising, you need to seek consent from the Heritage Canada Foundation. Not surprisingly, they have rules. The flag should be flowing “freely” and not defaced in any manner.4

ACA members: Join Gowlings’ Partner Brian Fraser tomorrow (Nov. 10) for an ACA webinar to have your questions about Advertising and Marketing Law in Canada – 5th Edition answered.

  1. R.S.C. 1985, c. R-10.
  2. R.S.C. 1985, c. T-13.
  3. We digress at this stage to point out that the British Royal Family has a whole department whose job it is to assign “The Royal Warrant” to products which the Royal Family officially “endorses”.
  4. Visit the Heritage Canada Foundation website online at for
    further details.