Brian Chau is a JD candidate at Osgoode Hall Law School.

If everyone is the best, as per their advertising, would that mean that all products are merely average?

This is a conundrum that serves as a key point of consumer frustration: How do we differentiate amongst products who all seem to be claiming the same qualities?

Last Tuesday, Telus announced it had been granted a temporary injunction against Rogers Communications, over the claim that Rogers offers “Canada’s most reliable network”. You may remember this from the countless ads that bombarded us daily to reinforce their brand messaging.

There may have been merit in the claim in the past, where Telus operated at a significant technological disadvantage to Rogers (Telus was married to the arguably dying CDMA technology). Now that Telus has launched a new high speed network, these claims may no longer be true. In his ruling, Justice Grauer acknowledges these differences and notes that continuing on with the advertisements would be misleading.

Interestingly enough, Rogers is now seeking a similar injunction on Bell, who uses similar terms in its advertising.

The Proof is in the Pudding

What does this mean for customers? It would appear that the courts are suggesting that corporations need to be able to provide compelling proof that back up their claims - it is not simply enough to trumpet your wares without substantive grounds. In theory this would provide a great benefit for the customer, a vulnerable party who often does not have enough reliable information to make an informed decision. How often have we heard companies describe their service as the ‘best' and wondered whether it was only an advertising gimmick?

It has been suggested that the increase in prevalence of these lawsuits are a reflection of the realities of an economy in recession, but I think there are long term implications that should also be considered. Essentially, these rulings open up a battlefield in terms with very high stakes - market perception is fundamentally tied to market share and product margins.

This may lead to drastic changes in how advertisers develop brand slogans and corporate identities. For example, how does one prove a certain shampoo ‘repairs hair’ better than their competition? How about for broader claims that aren’t directly associated with any individual quality in the product itself - ‘No other dog food stacks up like Iams’?. There is also an issue in how research findings are interpreted and applied - Bracco recently won 11.4M USD in damages from GE where it was found that GE misrepresented a clinical study comparing their X-ray products.

While I am not an expert in this area of law, I believe a measure of caution needs to be taken in how far we take this measure. For each industry or product, there are certain critical elements that can and should be quantified in proving which product is superior. In the case of the mobile carriers, perhaps this can be measured in a study of throughput / quality of service metrics. From here, we can infer a basic and consistent set of criteria, measured by an independent third party. However, for more subjective elements, I would think that they do not require as stringent of a test. Advertisers do need a certain latitude to do their jobs effectively, and to me, this would seem like a reasonable restriction that balances their creative freedom with the rights of consumers.