Oct 27, 2020

There are few areas in which one can debate the concept of false and misleading advertisements more than in cosmetic procedures. In Fanous v. Tribunal des professions, 2020 QCCS 2411, http://canlii.ca/t/j91z1 a number of the ads were found to be false and misleading from the perspective of a general member of the public. The Court was of the view that it was appropriate to view the ads from the viewpoint of the members of the public that the advertising requirements were trying to protect rather than how other practitioners would understand them. Doing so did not insert a new theory of the case that required prior particularization. The Court also rejected the argument that expert evidence was required to determine how the ads would be perceived by members of the public.

[Unofficial Translation] What is more, it is true that the comparison of the photographs is revealing; if subterfuge does not sway the sharp eye of the expert, it is reasonable to conclude that in the eyes of an average consumer, a layman, the use of an “after” photograph whose angle, smile, makeup and hairstyle benefit the patient’s appearance constitutes misleading advertising.

Regulators are wise to interpret requirements from the perspective of those being protected.