Canada: Competition Bureau Enters Into Consent Agreement With TRUE Sports, Inc. Regarding Performance Claims

On November 17, 2020, the Competition Bureau announced that it had entered into a registered consent agreement with TRUE Sports, Inc., a hockey equipment manufacturer, in order to settle an investigation into performance claims made by the company in relation to its TRUE Dynamic 9 Pro hockey helmet.

The Bureau alleged that certain claims made on the TRUE Sports website, in-store displays and product packaging created the impression that the TRUE Dynamic 9 Pro hockey helmet could reduce the risk of concussions. Through its investigation, the Bureau concluded that the testing carried out by TRUE Sports in relation to these claims was not adequate or proper. Under the consent agreement, TRUE Sports is required to donate $100,000 in sports equipment, cease making any of the claims at issue, implement a Corporate Compliance Program and pay $20,000 towards the Bureau's investigation costs.

The Bureau's consent agreement with TRUE Sports

The Bureau alleged that, since at least November 2019, TRUE Sports had advertised its TRUE Dynamic 9 Pro hockey helmet to the public in a manner that created the general impression it could reduce strain on the brain by reducing rotational motion due to angled impacts, thereby reducing the risk of minor or severe brain injuries, including concussions. While TRUE Sports had submitted the helmet for testing before making these performance claims, the Bureau concluded that the testing was not sufficient to establish that the helmet was capable of protecting hockey players from concussions. A relevant consideration for the Bureau in its evaluation of TRUE Sports' testing was the absence of an established injury threshold for concussions. The Bureau also found that TRUE Sports relied on brain injury studies which focused on sports with fundamentally different patterns of injuries than those suffered while playing hockey.

Pursuant to the consent agreement, TRUE Sports will:

The Bureau considered the low volume of sales of the TRUE Dynamic 9 Pro hockey helmet in Canada, as well as the impact of the COVID-19 pandemic on TRUE Sports' operations, when determining these requirements.

The consent agreement provides a number of takeaways for companies whose businesses may rely on performance, efficacy and length of life claims when marketing their products. The Bureau's pursuit of TRUE Sports' claims emphasizes the importance of proper and adequate testing, as further described below, and further, may indicate a renewed focus on performance claims relating to consumer health and safety.

Performance claims must be based on adequate and proper tests

Under s. 74.01(1)(b) of the Act, the Bureau may investigate representations made to the public for the purpose of promoting a business interest, where those representations relate to a statement, warranty or guarantee of performance, efficacy or length of life of a product that is not based on adequate and proper testing and is materially misleading.

Guidance issued by the Bureau indicates that it will investigate performance claims for proper and adequate testing where either: (a) the claims are inappropriate in relation to the actual test results; and/or, (b) the claims are based on tests that have poorly designed testing methodologies. The phrase "adequate and proper test" was left undefined in the Act in order to maintain flexibility when evaluating claims. The Bureau provides guidance in its Deceptive Marketing Practices Digest, Volume 2 publication on the principles that it considers to be hallmarks of an adequate and proper test:

1. "Adequate and proper" will be dependent on the general impression that the advertisement makes on consumers;
2. The test is conducted before the claim is made;
3. The test is done under controlled circumstances, controlling for external variables;
4. Subjectivity is eliminated as much as possible;
5. The test establishes that the results are not mere chance or a one-time effect, by establishing that the product causes the desired effect in a material manner; and
6. The results of the testing support the claim being made.

While TRUE Sports had carried out testing on the TRUE Dynamic 9 Pro hockey helmet prior to marketing it, the Bureau held the view that the testing that was undertaken did not properly or adequately substantiate the claims that were made. Particularly, current hockey helmet testing standards in Canada are aimed at reducing the risk of catastrophic head injuries, such as skull fractures, and not on non-catastrophic brain injuries, including concussions.

Adequate and proper testing is an important component in substantiating performance claims. The testing must sufficiently support the claims in question, and companies should follow the Bureau guidance, noted above, to ensure that any performance claims in their advertising are effectively substantiated with adequate and proper tests.

The Bureau's renewed focus on performance claims

The consent agreement is part of a series of investigations by the Bureau into performance claims relating to consumer health and safety. TRUE Sports is the third hockey equipment manufacturer to enter into a consent agreement with the Bureau relating to hockey helmets.

In 2014, the Bureau entered into a similar consent agreement with Bauer Hockey Corp. after determining that the company had made claims which created the impression that the RE-AKT helmet would offer hockey players protection from concussions caused by rotational impacts. Although Bauer had conducting testing on the helmet, the Bureau found that the testing was not adequate or proper to support the claims being made about concussions. Under the consent agreement, Bauer was required to donate $500,000 worth of equipment to a charity that supports youth participation in sports, remove or modify all RE-AKT performance claims in question, implement an enhanced Corporate Compliance Program, and pay $40,000 towards the Bureau's investigation costs.

Similarly, in 2015, the Bureau entered into a consent agreement with Reebok-CCM Hockey, after concluding that the testing the company had carried out was not adequate and proper to support its claims that the CCM Resistance helmet and similar products would protect hockey players from brain injuries such as concussions. Reebok was required to donate $475,000 worth of equipment to a youth sports charity or an association supporting underprivileged children in hockey, remove or modify all relevant performance claims from the company's marketing materials, implement an enhanced Corporate Compliance Program, and pay $30,000 towards the Bureau's investigation costs.

The Bureau has noted that the science behind concussions in sports is still in its early stages, and therefore the impact of hockey helmets in reducing concussions remains unclear. Factors such as age, weight, strength of the player, location of the impact, and anticipation of the impact may also contribute to concussion injuries, with or without protective equipment. Based on these considerations, it is likely that the Bureau will continue to robustly monitor performance claims, particularly in relation to the impact of protective sports equipment on consumer health and safety.

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