Ma& Sales Law 2

• For greeting cards, books and talking toys
• Only sold in the 'local government unit' in which it was manufactured or adjacent (benachbarte) local government unit
• English is the mother tongue of less than 10% of the population and French more than 10%. Und umgekehrt

• Fines up to 1000 or max. 6 month prison (summary conviction offence)
• Fines up to 3000 or 1 year prison (indictable offence)

If relating to food:

• Fine up to 50'000 or max. 6 month prison (summary conviction offence)
• Fine up to 250'000 or max 3 years prison (indictable offence)

Made:

• More than 51% of the raw material and production costs must be incurred in Canada
• The last 'substantial transformation' must have taken place in Canada

Produced

• More than 98% of the raw material and production costs must be incurred in Canada
• The last 'substantial transformation' must have taken place in Canada

Food:

• Article manufactured, sold or represented for use as food or drink for human beings, chewing gum and anz ingredient that may be mixed with food for any purpose whatever

Drugs:

• Any substance or mixture of substances manufactured, sold or represened for use in treating or preventing disease or an abnormal physical state in human beings or animals

Cosmetics:

• Any substance or mixture of substances manufactured, sold or represented for us in cleansing, imroving or altering the complexion, skin, hair or teeth and includes deodorants and parfumes

• If durable life of less than 90 days, 'best befor' date and 'packaged on' date must be showed
• List of ingredients in descending percentage order
• Nutrition Facts Table
• Food allergens put either in the list of ingredients or statement 'Contains...'

• Includes vitamin and mineral supplements and plant and non-human animal material that are sold or represented as preventing or treating disease or that promote healt.

• Grey area between drugs and food
• Child-proof packaging required as also license
• Packaging must contain information such as a list of each medicinal ingredient, recommended dosage and recommended storage condition.
  • Depends on product composition, representation, format and public perception and historz of use

• Trend is towards treating food-like NHP as food, ex. energy drinks

• Fine of up to 50'000 or max 6 month prison (summary conviction offence)
• Fine of up to 250'000 or max. 3 year prison

• Requires the state of materials used and the name of the dealer
• Prohibits use of pictures on labels that falsely suggest a particular kind of fabric is used in the clothing
• Exemptions: Student/ employee clothing, commercial enterprises, educational institutions, health care facilities

Foods labelled and advertised as 'organic' must contain at least 95% organic ingredients

• Duty of care (Sorgfaltspflicht)
  • Reasonable foreseeability of harm
  • Inspection intervening cause
• Breach of the Standard of Care
  • Reasonable, prudent person
    • Defects arising from manufacturing process
    • Design not guard against foreseeable damage
    • Duty to warn (Extends to after sale)
• Causation of Harm
  • 'but for'
  • 'material contribution'

• Partial defence: Contributory negligence
• Total defence
  • Voluntary assumption of risk ( Plaintiff must have accepted both the phzsical and the legal risk of injury
  • Abnormal use

• A person has made a fraudulent (betruegerisch) statement that intentionally causes another person to rely on it to his/her detriment
• Elements:
  • Misrepresentation
  • Fraud
  • Reliance (Vertrauen)
  • Damage

• A false statement concerning the plaintiff's trade
• to a third partz
• out of malice
• resulting in the plaintiff suffering a pecuniary loss

Defence of justification can exist

• Two or more persons have entered an agreement to cause economic loss to another person (trough lawful or unlawful means)
• Plaintiff must have suffered economic harm
• If lawful means issue then the economic harm must have been the defendants predominant purpose
• If unlawful means, the economic harm need only have been reasonably foreseeable

Exists where a party agrees with its competitor to:

• fix, maintain, incease or control the price for the supply of a product
• allocate (zuteilen) sales, customers or markets for the production or supply of the product
• fix, maintain, control, prevent or lessen the production or supply of a product

Exemptions

• Export of goods from Canada
• Setting standards of competence
• Agreements between parent companies and their subsidiaries

Element of direct inducement:

• Defendant directly induced third party
• who defendant knew was in a contract with plaintiff
• third party breached contract due to defendant's inducement
• Plaintiff suffered resulting economic harm

Element of indirect inducement:

The defendant made it impossible for the third partz to perform the contract with the defendant

• Elements are the same as direct inducement, but the conduct (verhalten) must have been illegal
• Strong evidence is required to show that the breach was an unacoidable consequence of the defendant's illegal act.

• Inten to injure the plaintiff's economic interests
• Interferenc in those interests by illegal or unlawful means
• Economic harm
• Court generally require the plaintiff to sue the defendant under another tort (unerlaubte Handlung) if another one is availabel

Elements:

• Publication of a statement that is false
• Causes a reasonable person to lose esteem or respect for the plaintiff

Defences

• Justification - Defendant's statement was true
• Fair comment
  • Statement was a comment or opinion; based on facts
  • Statement must concern a matter of public interest and must be fair
• Responsible communication on a matter of public interest
  • Statement must concern a matter of public interest
  • Defendant must have acted responsibly in making the statement

• Absolute
  • Applies to parliamentary proceedings, statements in court, statements between high-level civil servants and communications between spouses
• Qualified
  • Applies where the defendant has a moral, legal, or social duty to communicate the statement, to a party who has a duty or legitimate interest in receiving the statement

• Tort without proof of damage
• For aperson to use the ame or portrait
• for the purpose of advertising/ promoting the sale

• Plaintiff must be recogniyable in the portrait
• Statutory (gesetzlich) protection expires on deaht of person

• Passing off
• Negligence (Fahrl'ssigkeit)
• Decit (Taeuschung)
• Injurious Falsehood
• Conspiracy (Verschwoerung)
• Defamation (Verleumdung)
• Misappropriation of personality

• Began as criminal legislation and is now more administrative in nature
• Applies to goods and services
• Investigation can be initiated from the public or by the Commissioner of competition
• Commissioner has broad powers of investigation

• The Competition Tribunal is a specialized tribunal that combines expertise in economics and business with expertise in law.
• Can issue orders that have the power of court orders

• Merger (Fusionen) or monopoly activity that will lessen (vermindern) competition to the disadvantage of the public is subject to review by the Competition Tribunal

Elements:

• A company has substntial control over a class or species of business (More than 85%)
• The firm engages in anti-competitive acts
• The acts have lessened competition or will liklely do so

• Bid rigging can take many forms, but one frequent form is when competitors agree in advance which firm will win the bid.

• Price maintenance may occur when a supplier prevents a customer from selling a product below a minimum price by means of a threat, promise or agreement.
• Must result in an adverse effect on competition
• Can arise from a refusal to supply to a customer due to the customer's low pricing strategy

• Refuses to sell to a customer who is willing to meet the usual trade terms
• The customer would be substantially affected or unable to carry on its business as a result, due to a lack of competing suppliers
• There must also be an ample supply of the product at issue

Schneeball-System

Occurs when a supplier requires a customer to acquire another product as a condition of supplying a product. 

• Isn't an offence if there is a technological relationship betweent the products
• Must result in a substantial lessening of competition

For example, if you apply for a mortgage at a bank, the institution cannot make you buy another product or service as a condition for obtaining the mortgage.

• Any representation to the public that is false or misleading in any material respect
  • Incorret statements as to the price goods or services have been sold for
  • Occurs even where the statements are correct, but where the impression given would materilly mislead the public
  • Can arise in comparative advertising
• Dual category offence
  • Reviewable Practice (Nachweisbar)
  • If intentionally then prohibited Trade Practice

Using telecommunications to orally promote a business interest or the supply or use of a product

• Must make disclosures as to their identity, nature of business interest, prodcut, price of any product promoting, material restrictions
• Can't make false representations
• Due diligence defence is available

Individuals who wrongfully call numbers on the DO NOT CALL list can be fined up to 1500 and companies up to 15'000

Entities that aren't required to abide (einhalten) by the list

• Registered charities
• Political parties and candidates
• Opinion polling firms and makret research firms
• Newspapers selling subscriptions
• Organizations that have a business relationship with you

Arises where aparty publicly advertises a low price for certain goods, then stocks only different, higher priced goods at point o sale.

Will be an offence unless the seller can show they took reasonable steps to obtain an adequate supply of the low priced goods

Seller can avoid liability by issuing rain checks (Gutschein)

Party who has been injured by breach of the Competition Act or a violation of a Tribunal order can sue

Can Claim damages, but only up to their actual loss (Comensation for legal costs can be sought as well)

Injucntions are a common remedy

• Dominant Position
• Conspiracy
• Bid-Rigging
• Price Maintenance
• Refusal to Deal
• Multi-Level Marketing
• Tied selling
• Misleading Advertising
• Deceptive Telemarketing (Irreführend)
• Do Not Call List
• Bait and Switch