Kim D.G. Alexander-Cook Clare G. Smith Partner General Counsel N N OVATION LLP Labatt Breweries of Canada T HE P OSSIBLE M EETS THE P ERMISSIBLE M EETS THE A DVISABLE — Rendering Valued Advice on Marketing Practices — CBA National Competition Law Section Young Lawyers Committee / Marketing Practices Committee

 Marketing Practices and the Roles of Outside Counsel  The Competition Lawyer Voice: ~ There is no substitute for legal expertise ~  Expertise in the statutes/codes  Substance:  Competition Act: Criminal & Reviewable / Consumer Packaging and Labelling Act: ss. 2, 4-7 / Food & Drugs Act: ss. 2, 5, 9, 17, 20 / Provincial CPAs: e.g., Consumer Protection Act, 2002 (Ontario): ss  Advertising Standards Canada: Canadian Code of Advertising Standards  Pharmaceutical Advertising Advisory Board: Code of Advertising Acceptance  Other specialized sources  Process:  Initiating process: complaint, application, private action, public investigation, criminal charge etc.  Steps in process: inquiry, court orders, types of evidence, hearings, etc.  Resolutions/Remedies/Penalties: AMPs, fines, restitution, corrective notice, rescission, behavioural order, criminal conviction, etc.

(Competition Lawyer Voice … cont’d)  Expertise in economics / claims evidence / jurisprudence  Key economics questions: market definition / competitive effects  Claims evidence: consumer research / product research / statistics  Look to U.S. and E.U. cases, in addition to Cdn cases  Expertise in enforcement priorities and the approach of authorities  Competition Bureau guidance documents / public statements / personal discussions  ASC and PAAB / personal discussions  Health Canada guidance / personal discussions

 The Business Lawyer Voice: ~ There is no substitute for good judgment ~  Marketing practices that can attract scrutiny are generally competition at its best — tools to gain commercial advantage  Need to understand client well and exercise judgment accordingly:  Market position(s), goals, risk tolerance, budget, internal control processes, compliance programs, product/service portfolio, skeletons (if any), etc.  Key individuals: Legal Counsel, VP Marketing, VP sales, VP Communications, CFO

 Inside Counsel / Management: What are they looking for from Outside Counsel?  Critical area of practice for in-house counsel, but they tend not to be “experts”  Expertise in this area can help select law firm of choice  Contacts/relationships with regulators, broader industry knowledge, expertise  Can help you say “no” or help you to say “yes” Outside perspective

(Inside Counsel / Management … cont’d)  Compliance programs/training for in-house legal departments or senior management  Social media can raise privacy, IP, misleading advertising, contest issues etc.  Keeping pace with evolving technologies and trends  Want practical, solution-oriented advice, and want it fast and at a low cost  Key to understand business and risk tolerance of business  Type of media used  Incumbent or new entrant

 Marketing and Advertising Practitioner: Where Do I Stand and Where Can it Lead?  The Role:  Practice issues engaged: Contract negotiation & review / agencies / promotional contests / new media / privacy / copyright / trade-marks / regulated products & services / complaints / legal & reputational risk analysis  Potential practice synergies: Specialized products & services / trade-marks/copyright, including licensing / general commercial agreements / e-commerce / competition law / entertainment law  Positioning the Role:  As Competition Lawyer?  As General Corporate/Commercial Lawyer?  As General Litigation Lawyer?  As Specialist?

 Discussion / Questions