Canada’s Code of Advertising Standards is meant to ensure accuracy, but doesn’t apply to ‘political issues’

Susan, a 59-year-old woman from B.C.’s interior, was watching TV earlier this year when she first laid eyes on one of the Government of Alberta’s “Keep Canada Working” ads to promote the Trans Mountain oil pipeline and tanker project. The ads began appearing in newspapers and on billboards across the west in April, and began airing on TV and radio stations this summer.

The advertisement Susan saw was a cutesy cartoon format — featuring animations of mountains, hospitals and wind turbines, along with birds clasping coins and people erecting trees.

“One of Canada’s most valuable resources has flowed along the Trans Mountain Pipeline since 1953,” said the narrator. “Enriching our lives in many ways.” An upbeat jingle played in the background.

“The overall tone was a little demeaning,” Susan told The Narwhal.

Then the ad went on to say “the expansion doesn’t mean more oil production” — a claim Susan was sure was false.

“It felt manipulative and dishonest.”

Because she had seen the ad on TV, Susan turned to the Advertising Standards Council, the not-for-profit responsible for administering the Canadian Code of Advertising Standards, which states:

Advertisements must not contain, or directly or by implication make, inaccurate, deceptive or otherwise misleading claims, statements, illustrations or representations.

Susan (who requested The Narwhal not use her full name for privacy reasons) submitted an advertising standards complaint, thinking the Alberta Government would be held to account for what she believed were false statements.

“The ad says the pipeline will not increase oil production,” she wrote in her complaint. “But news articles show that pipeline availability is a factor in increasing oil production.”

She wasn’t wrong to be concerned about the accuracy of the statement, but it turns out the Canadian Code of Advertising Standards — including the important rules that ensure advertisements are accurate and not deceptive or misleading — don’t apply to advertising paid for by the government that is deemed to be about a “political issue.”

Susan was appalled.

“Government should be held to a higher standard,” she told The Narwhal.

Jonathan Rose, associate professor of political studies at Queen’s University, echoed Susan’s concerns. Rose told The Narwhal he worries about truth in advertising by governments, and noted that companies are held to higher standards. “It is bizarre that the standard does not apply to parties or governments,” he said.

“You wonder whether government is advertising at the behest of corporate interest,” he said.

“If the government is making an argument the same as a corporation, that should give us pause.”

Campaign to counter ‘misinformation’ includes … misinformation



When the campaign was first announced, the spending was pegged at $1.29 million. That number has now gone up substantially.

The Government of Alberta has spent $9.87 million on its Keep Canada Working advertising campaign since April, including more than $2 million on its TV and radio ads alone, according to Cheryl Oates, the premier’s director of communications.

The campaign appears across a variety of platforms. There have been TV and radio ads, billboards across B.C. (including Vancouver, Victoria, Kelowna, Kamloops and the west Kootenays, as well as airports in Abbotsford and Nanaimo) and full-page newspaper advertisements — and then there’s a YouTube channel, a Twitter account and a Facebook account. The latter describes itself as “an initiative by the Alberta Government to build support for the Trans Mountain Pipeline expansion project.”

When the campaign first debuted, the Alberta government said in a press release that the “Keep Canada Working” campaign was a “a nationwide campaign to highlight the economic, social and environmental benefits of the Trans Mountain Pipeline expansion” that “will inform Canadians about the benefits of market access and counter the misinformation, harassment and obstruction that the project has faced.”

Slogans including “Trans Mountain pipeline means more money for roads, schools and hospitals” and “Trans Mountain Pipeline is critical to Canada’s climate plan — revenue generated will fund greener energy sources and innovation” have been appearing across Canada since April.

But in their efforts to “inform Canadians,” Susan worried that the Government of Alberta was leaving out important pieces of information in some areas — and providing false information in others.

Pipeline will ‘transport increased oil production’

The commercial claims the pipeline would not increase oil production. But there have been plenty of assertions that the Trans Mountain pipeline expansion will, in fact, increase production — including in filings from Kinder Morgan to the National Energy Board, as well as in the intentions of proposed new oilsands mines to use the increased capacity to ship their oil.

Document after document lays out in plain language Trans Mountain’s intention to carry oil from increased production. When The Narwhal asked how the government verified its claim, Oates said in an e-mail, “facts and data originate from Government of Alberta researchers and program specialists. In some instances, credible third-party sources including other levels of government, financial institutions and academic sources are used.”

Oates maintained that Alberta’s “export pipeline system is nearing or at capacity based on already existing levels of production; this includes the existing Trans Mountain pipeline.”

“The expansion of the Trans Mountain pipeline to the West Coast is not tied to any specific commitment to increase production,” she said.

But documents filed with the National Energy Board show otherwise.

In its “Pipeline Environmental Protection Plan for the Trans Mountain ULC Trans Mountain Expansion Project,” submitted to the National Energy Board back in 2013, Kinder Morgan’s environmental consultants stated that “The expansion has been developed in response to requests from Western Canadian oil producers and West Coast refiners for increased pipeline capacity in support of growing oil production.”

And in a May 2015 “Public Interest Evaluation of the Trans Mountain Expansion Project,” also submitted to the National Energy Board, experts concluded that the pipeline expansion “will provide pipeline capacity to transport increased oil production from the WCSB [Western Canadian production basin].”

Increased oil production is listed as the first reason put forward by the Trans Mountain pipeline expansion project when justifying that the project is “in the public interest.”

And in its final arguments, included in a document filed with the National Energy Board in December 2015, Trans Mountain made its intentions clear: “Additional pipeline capacity is required for growing Canadian production.”

It doesn’t stop there. Proposed greenfield mines have also indicated their new oil production will flow through the Trans Mountain pipeline expansion project.

Teck Resources, the company behind the proposed Frontier mine — a massive 24,000-hectare project that would introduce an open-pit mine just 25 kilometres south of Wood Buffalo National Park — has already been allocated a spot in the expanded Trans Mountain pipeline.

In the company’s 2017 annual report, Teck noted it had “contracted 12,000 barrels per day on Kinder Morgan’s Trans Mountain Pipeline expansion project for delivery to Burnaby, B.C.” to ship bitumen from the Fort Hills project, which just officially opened last month (Teck has a 23% share in Fort Hills).

But none of this stopped the Alberta government from advertising “the expansion doesn’t mean more oil production.”

So Susan went to the Advertising Standards Council to complain.

‘Highly politicized’ issues excluded from code

For more than 60 years, the Advertising Standards Council (known as Ad Standards) has billed itself as “Canada’s national, independent, advertising self-regulatory body.”

It’s often the go-to for citizens concerned with claims they’ve seen, heard or read in advertisements.

But when it comes to political issues, according to Rose, “there’s nothing in any advertising standards rules or regulations that can control or limit the content of government advertising or political party advertising.”

So when Susan submitted her complaint, she received the following response:

“According to the Code ‘Canadians are entitled to expect that political and election advertising will respect the standards articulated in the Code. However, it is not intended that the Code govern or restrict the free expression of public opinion or ideas through political or election advertising,’ which are excluded from the Code. Based on this exclusion, Ad Standards cannot pursue your complaint.”

“In our view, it meets the definition of political advertising,” Janet Feasby, vice-president of standards for the Advertising Standards Council, told The Narwhal of the pipeline ads.

Political advertising is defined by the code as “advertising appearing at any time regarding a political figure, a political party, a government or political policy or issue publicly recognized to exist in Canada or elsewhere, or an electoral candidate.”

While the code does apply to “governments, government departments and crown corporations,” Feasby said the decision about what constitutes a political issue, and therefore a political advertisement, is made by Ad Standards staff. Feasby told The Narwhal it can be difficult to make the distinction between government advertising and political advertising.

“It’s sometimes challenging to decide whether an ad sponsored by government is political advertising,” she said, noting that “the issues that come up during elections or that are highly politicized — whether they’re an ad by government or a political party — if it’s that kind of issue, it would be excluded as political or election advertising.”

“We would look at it as issues that would, or could, be raised during elections.”

The Competition Bureau is another potential avenue for citizens concerned about false or misleading advertising. A spokesperson for the Competition Bureau told The Narwhal by e-mail that “advertisements made solely for a political purpose would typically be out of scope where there is no product or business interest being promoted.”

In essence, the applicability of rules regarding truth in advertising rests on whether an issue is seen as political.

For Rose, the Queen’s University professor, this poses potential problems.

“Where there’s a problem is when advertisement is taking the place of public dialogue,” he told The Narwhal. “So if there’s not agreement around a policy issue and the government is advertising, they’re assuming that there is a right answer rather than engaging with the public on the issue.”

‘The ability to deceive’

In 2017, Canadians submitted 1,808 complaints to Ad Standards — and nearly 800 of those alleged misleading or inaccurate advertisements.

According to Ad Standards’ 2017 annual report, the organization upheld 156 complaints (regarding 37 individual advertisements) because they had “omitted relevant information, did not clearly state all pertinent details of an offer, and contained unsubstantiated claims.”

And while Ad Standards declined to release any information about complaints that were not substantiated, it appears not one of those upheld complaints related to what’s referred to as government advertising.

In its records, Ad Standards displays only one complaint about a government advertisement that was upheld. In 2010, it found the Alberta government was misleading in the way it presented information about a free training program. Notably, Ad Standards has upheld ten complaints about advertisements from anti-abortion groups, despite abortion arguably fitting within the definition of a “political issue.”

Rose noted that “oppositions are usually all too happy to point out errors and governments are loathe to make blatant errors of fact,” but that’s not the case in Alberta, where both the NDP and the opposition UCP have an interest in promoting the pipeline.

The implication of there being no overarching rules about truth in government advertising about political issues, he said, “are that government has the ability to deceive people.”

“That’s problematic.”

Ad Standards rules ‘rely on the cooperation of advertisers’

Feasby noted that while determining who is excluded from the the Canadian Code of Advertising Standards “is certainly not something we take lightly,” Ad Standards has little ability to enforce the code in any case. “We’re not the government and we rely on the cooperation of advertisers,” she said.

Ad Standards is responsible for administering the code, which it calls “the principal instrument of advertising self-regulation.”

“It’s a voluntary process,” Feasby told The Narwhal. “We can’t extend the code to any type of advertising without some assurance that the affected category would agree.” (Oates, the spokesperson for the premier’s office, told The Narwhal in a statement that “The Government of Alberta follows the guidelines set forward in the Canadian Code of Advertising Standards.”)

Feasby noted that in ten the past, Ad Standards has “reached out to political parties but haven’t received any assurance that they would agree to be bound by the decisions.”

‘Priming’ voters for a partisan campaign?

Rose also raised concerns that there’s a possibility that government advertising may segue into party advertising when an election rolls around.

Alberta’s next election will be held on or before May 31, 2019. The campaign period will last three months, and must begin by March 1, at the latest. Once the election is called, all non-essential government advertising will be suspended.

So far, the nearly $10 million to date spent on the Keep Canada Working advertising campaign has been entirely paid by taxpayers.

It’s possible, Rose said, that ”governments advertise using taxpayers’ money, and then parties put out the same message using party money.”

“If that’s the case, then it’s using government money to prime what is essentially a partisan political advertising campaign, and that’s a problem.”

* This story has been updated to reflect that Teck Resources’ contract with the Trans Mountain Pipeline expansion is for bitumen produced in the recently opened Fort Hills mine, not the proposed Frontier Mine as originally reported.

A screen grab from the Government of Alberta's 'Keep Canada Working' ad campaign. Image: Province of Alberta