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Regulatory Directive DIR2016-01, Guidelines for the Advertising of Pest Control Products

Pest Management Regulatory Agency
18 November 2016
ISSN: 1498-5926 (PDF version)
Catalogue number: H113-3/2016-1E-PDF (PDF version)

(PDF Version - 159 K)

Table of Contents

1.0 Introduction

This document serves to replace DIR96-02, Environmental Label Claims and Advertising of Pest Control Products, and DIR99-02, Advertising Pest Control Products, reflecting current legislation, regulations, and policy developments. It discusses key requirements pertaining to the advertising of pest control products in any form or medium.

More specifically, this document sets out Health Canada's interpretation of various requirements in the Pest Control Products Act, Pest Control Products Regulations, and elsewhere regarding the advertising of pest control products in Canada. It offers guidance on:

2.0 Background

2.1 Guiding Principles and Scope

2.2 Legal Framework

Advertising requirements are spelled out primarily in the Pest Control Products Act and Regulations. However, other statutes and regulations supplement the Pest Control Products Act and Regulations in various ways.

2.2.1 Key Definitions

The following provisions in the Pest Control Products Act and Regulations set out some basic definitions. The key terms "advertise" and "distribute" are defined in subsection 2(1) of the Pest Control Products Act:

These provisions indicate that what constitutes "advertising" is broad and includes any textual or other representation that serves to promote the distribution of a pest control product.

2.2.2 Restrictions

Other provisions in the Pest Control Products Act and Regulations relevant to advertising are ones that provide requirements for text and symbols in advertising.

Together, these provisions indicate various requirements for the wording and presentation of text in advertising.

3.0 Guidance on Advertising

3.1 Different Forms of Advertising

The broad definition of "advertise" in the Pest Control Products Act means that advertising of pest control products includes promotional material in print, on television, radio and the Internet, and in any other medium. It also means that advertising includes promotional material on labels, in communications with potential customers or consumers, and in technical documents as well as in conventional advertisements and commercials.

3.2 Pre-registration Communications

The Pest Control Products Act prohibits certain kinds of advertising, including advertising of pest control products for which a decision on registration has not yet been made. Accordingly, communications occurring prior to an applicant's receipt of the registration certificate for a product that serve "directly or indirectly" to promote "the distribution of a pest control product" are unacceptable, since these constitute advertising according to the Act. Likewise unacceptable are pre-registration communications that presume the outcome of registration decisions. Health Canada considers all of the following to fall under the definition of "advertise" under the Pest Control Products Act and hence not acceptable for unregistered products:

Applicants may, however, still need to communicate basic technical information about unregistered pest control products to distributors, retailers, or commercial users (including commercial growers) prior to the receipt of a letter granting registration. This communication of key factual information about pest control products by applicants to relevant parties prior to registration is acceptable.

Note that a clearly informational message should involve facts described in an objective and balanced way and be able to withstand empirical scrutiny. By contrast, a clearly promotional message may involve a strong focus on the pest control product's benefits and vague claims that, for example, create an impression but may have little factual content.

Pre-registration communications that indicate technical/factual aspects of specific pest control products such as the following will not be considered promotional:

Applicants may also communicate (orally or in writing) with retailers, distributors, or commercial users of pest control products regarding retail pricing for an unregistered product, but only if the communication:

Applicants must include the following statement regarding the registration status of the proposed product in written communications:

This product is currently being assessed for registration under the Pest Control Products Act.

It cannot be manufactured, imported, distributed, or used in Canada at this time, unless explicit authorization has been obtained from Health Canada to use this product for the purpose of conducting research under the Pest Control Products Regulations.

3.3 Advertising Claims

The potential for a claim to be misleading depends on the context in which it is made. Registrants can reduce the risk that claims may be false or misleading if they can substantiate all claims with reliable evidence. Accordingly, all claims should be precise enough to withstand scrutiny and be consistent with relevant evidence. In addition, all claims should be restricted to the use or uses for which a product has been registered and must not state or imply (including through a brand name) that the product is appropriate for additional "off-label" uses.

3.3.1 "New" and "Improved"

The terms "new" and "improved" in reference to pest control product formulations should be used in advertising for a period of no more than 18 months from the date that Health Canada registers or amends a registration of a pest control product or receives notification of a changes to a product's formulation. The terms "new" and "improved" in reference to pest control product packaging should be used in advertising for a period of no more than one year from the date that new or improved packaging is first marketed. After these periods, claims would need to be altered to reflect the fact that the change is no longer recent. In each case, use of these terms should be based on reliable evidence and clearly indicate what aspect of the product formulation or packaging is "new" or "improved".

3.3.2 "X-free" Claims

Claims that a particular ingredient is absent from a pest control product (in other words, "X-free") are permissible, subject to the following restrictions:

3.3.3 Health and Safety Claims

Broad unqualified claims such as "safe" or "safe for indoor use" are unacceptable. This is because such claims can be misleading, given that pest control products carry some degree of risk. However, the qualified claim "Can be used safely when used according to the label directions" continues to be acceptable.

3.3.3.1 Public Health Claims

As noted above, subsection 24(1) of the Pest Control Products Regulations prohibits public health claims regarding the "diseases, disorders, and abnormal physical states" listed in the Food and Drugs Act, Schedule A. This prohibition, however, does not extend to public health claims regarding any other diseases, disorders, or abnormal physical states, including Lyme disease and West Nile virus, which have been the subject of public health claims permitted in Canada. Specific public health claims are acceptable in advertising for pest control products only if they meet both of the following criteria:

Acceptable public health claims have the following form:

When used as directed, this pest control product will repel / control / suppress [as per the approved label] Pest X, which may cause / carry Bacterium Y / Virus Z / Disease W.

More specifically, these claims should contain these four components:

Public health claims must not imply that the product can or will prevent, mitigate or control any disease, disorder, or abnormal physical state or offer health protection. In particular, claims must not include such wording as "prevents infection", "controls infection", or "prevents cross infection".

3.3.4 Environmental Claims

Environmental claims in advertising should:

Recyclability claims may apply either to the pest control product itself or to its packaging. Claims may be made in writing or by means of the Möbius loop symbol (the universal recycling symbol), together with any appropriate qualifying statement (for example, one indicating the recycled content as a percentage by weight of the total packaging content).

Biodegradability claims for pest control product packaging or (where consistent with the product's composition) for the products themselves have been broadly permitted in the past. However, biodegradability claims are increasingly recognized to have a very high potential to be misleading, particularly given the great variation in the time required for a given product or its packaging to degrade. For this reason, biodegradability claims should be supported by a specific test method in which the maximum level of degradation and the test duration are appropriate to the circumstances in which the material is likely to be disposed of or managed through degradation. As with all other claims, biodegradability claims must be supported by reliable evidence.

3.3.5 Value Claims

Value claims must be substantiated by evidence evaluated during the value assessment that is part of Health Canada's registration process; and any such claims in advertising (such as those involving "control" or "suppression" of a certain pest) must be consistent with those on the label.

3.3.6 "Organic", "Natural", and Similar Claims

According to the Canada Organic Regime, overseen by the Canadian Food Inspection Agency, the expression "organic" applies to end-products (crops) and not to inputs (for example, pest control products). Accordingly, the description of pest control products as "organic", "biologique" (when used as the French equivalent of "organic"), or "organique" is unacceptable in advertising. (The term "biologique" is, however, acceptable in appropriate advertising contexts when it is intended to mean "biological").

The Canada Organic Regime does, however, recognize a role for certain inputs, including pest control materials, in organic production systems; this provides a basis for registrants of products containing such pest control products to promote them as suitable for use in organic production. Accordingly, pest control products consisting of substances that meet the relevant criteria for use in organic production (as described in the document Organic Production Systems -- Permitted Substances Lists, CAN/CGSB-32.311) may use the following statement in advertising:

This pest control product contains only substances that appear on the Organic Production Systems Permitted Substances Lists and may be suitable for use in organic agriculture; please consult your authorized organic Certification Body for further information.

Use of the statement is acceptable, however, only if a pest control product fulfils the following conditions:

Note that this statement may be accompanied by a logo that indicates a product's potential suitability for use in organic agriculture, as determined by a recognized assessor. Such a logo is acceptable only if it accompanies this statement and not if it stands alone.

It has long been considered unacceptable for registrants to use "natural", "naturally occurring", and similar expressions in pest control product advertising. This expression is acceptable, however, in various American pest control product contexts as well as in other Health Canada branches. Recognizing such uses, Health Canada will now consider this expression to be acceptable in advertising for characterizing pest control product ingredients, where these are:

Use of the expression "natural" in pest control product advertising does, however, have the potential to mislead consumers as to the composition, safety, or value of a product. In order to minimize this potential and to remain consistent with its mandate of protecting human health and safety and the environment, Health Canada will consider it necessary for any pest control product advertising that makes use of "natural" to fulfil the following conditions:

Claims involving expressions such as "natural(ly) source(d)" and "naturally derived", which leave it unclear in what respect a product's ingredients are natural, continue to be unacceptable.

The claim that a pest control product is of "food grade" is acceptable in advertising only if it fulfils the following conditions:

The term "botanical" is acceptable in advertising as long as:

3.3.7 Claims Related to Low, Lower or Reduced Risk

Claims that a pest control product poses a "reduced risk" (or variants using other terms such as "low risk" or "lower risk") remain unacceptable as these terms can be misleading without significant context. A claim that a particular pest control product poses a reduced risk may create an erroneous impression about the risks involved in its use and in the use of other registered products, none of which poses an unacceptable risk when used according to label instructions.

3.3.8 Claims Related to Certification

Pest control product advertising is considered false or misleading if it states or implies that a product is certified when no independent certification has occurred. In addition, reference to independent certification is acceptable only when the certifying body follows Canadian standards, such as those governing the use of the term "organic" (see Section 3.3.6 above).

3.3.9 Claims in Brand Names and Logos

The prohibition on false or misleading advertising in the Pest Control Products Act encompasses pest control product brand names and logos as well as more obvious forms of advertising. The reason for this is that false or misleading claims (for example, that an unregistered product is similar to a registered pest control product) can be made just as easily through a brand name or logo as through other means. The fact that a false or misleading pest control product brand name or logo is a trade-mark registered with the Canadian Intellectual Property Office does not insulate it from scrutiny under the Pest Control Products Act.

Recognizing, however, that brand names in particular are an important marketing tool requiring substantial investment in time and money, Health Canada will consider an otherwise misleading brand name to be acceptable in advertising if measures (for example, through particular formatting or the addition of "Brand" after the brand name) are taken to clarify that the brand name is not a claim about the product. Brand names that are likely to create the misleading impression that an unregistered product is a registered pest control product remain unacceptable.

3.3.10 Comparative Claims

Like all other factual claims about pest control products, comparative claims referring to competing pest control products must not be false, misleading, or likely to create an erroneous impression about the character, value, quantity, composition, safety, or registration status of a pest control product. In addition, comparative claims must clearly indicate the basis of the comparison with competing products and must be substantiated by reliable evidence.

3.3.11 Claims Stating or Implying Promotion, Endorsement, or Recommendation by the Government of Canada

An applicant's successful completion of the registration process means that Health Canada has accepted the applicant's pest control product for specific uses. However, statements indicating successful completion of the registration process have the potential both to mislead and to undermine Health Canada's neutrality as a regulator of pest control products.

As such, any wording in advertising that states or implies that the Pest Management Regulatory Agency, Health Canada, or the Government of Canada approves or approves of, endorses, promotes, or recommends the use of a pest control product is unacceptable as per Section 21 of the Pest Control Product Regulations. Claims such as "Registered by Health Canada" and "Health Canada registered" are likewise unacceptable in advertising. Such claims are potentially misleading in that they allow consumers to make unwarranted inferences about a product--in particular, that the product's registration is not limited to the particular uses allowed on the label and that the product's uses are not limited by its particular use directions.

3.4 Advertising and the Grower Requested Own Use Program

Grower Requested Own Use (GROU) products, while not registered in Canada, are regulated through the Pest Control Products Act and Regulations (see sections 37-44 of the Regulations). Accordingly, no party is permitted to engage in any activity in Canada that involves the Canadian sale or is intended to promote the Canadian sale of a GROU product.

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2024-04-22