Registry of the Competition Tribunal Greffe d1r1 Tribunal de la concurrence REGISTERED I ENREGISTRE
DEC 21 2005
THE COMPETITION TRIBUNAL IN THE MATTER of the Competition Act, R.S.C. 1985, c. C-34 as amended; AND IN THE MATTER of an inquiry commenced pursuantto subparagraphs l 0( 1) (b) (ii) and (iii) of the Competition Act into certain deceptive marketing practices of Everette Grattan;
AND IN THE MA TIER of the filing and registratioo of a Consent Agreement pursuant to section 74.12 of the Competition Act.
BETWEEN: ----------=:!ti-HE COMMISSIONER OlF COMPETITION COMPETITION IRIBUNAL Applicant TRIBUNAL DE LA co~~ENCE F (__,~ ~ ·and· ~ DEC 21 2005 g e v D I REGISTRA8 • f''.'.-:.G!STRAIRE T EVERETTE G~:ATTAN OTTP.w .. ~·~ i-..1 O DD lo_') Respondent CONSENT AGRl~EMENT WHEREAS the Commissioner of Competition (the "Commissioner'') is head of the Competition Bureau and is responsible for the administration and 1the enforcement of the Competition Act (the .. Act") including subsections 52(1) and 74.0l{!)(a) and 74.01{1 )(b);
AND WHEREAS the Respondent, Everette Grattan, is an individual residing in the province of New Brunswick;
AND WHEREAS the Respondent promotes and/or sells a variety of products and services including the Fuel Saver Pro through various means including over the Internet;
AND WHEREAS on Seplember 26, 2005, the Commissioner commenced an inquiry (the "Inquiry") pursuant to section IO of the Act into certain alleged deceptive marketing practices of several individuals involved in the sale and promotimt of an alleged fuel saving device, the Fuel Saver Pro;
AND WHEREAS on October 30, 2005, the Inquiry was amended to include Everette Grattan; AND WHEREAS the Commissioner has concluded, and the Respondent acknowledges, that from at least January 1, 2002 and continuing to May 31, 2004, the exact dates being unknown, the Respondent directly or indirectly, made or caused to be made, representations "the Representations" to the public through bulk unsolicilted email messages ("SPAM") for the purposes of promoting an alleged fuel saving device,, the Fuel Saver Pro, which were false or misleading in a material respect, thereby engaging in reviewable conduct contrary to subsections 74.0l(l)(a) and 74.0l(l)(b) of the Act;
AND WHEREAS the Representations were in the form of statements regarding the performance and/or efficacy of the Fuel Saver Pro that gave the gcmeral impression that the use of the product would significantly increase fuel efficiency and redu•ce emissions;
AND WHEREAS the Commissioner believes that tlhese general impressions are materially false and/or misleading, that the Fuel Saver Pro does not increase fuel efficiency nor reduce emissions. and that the representations which were in the fonn of a statement of the perfonnance and the efficacy of the products were not based on adequate and proper tests;
AND WHEREAS the Commissioner has concluded. and the Respondent acknowledges that he has engaged in reviewable conduct within the meaning of paragraph 74.0l(l)(a) ("false or misleading representations") and paragmph 74.0l(l)(b) (. .s tatements of performance not based on adequate and proper test");
AND WHEREAS the Parties are satisfied that this matter can be resolved with the registration of this Consent Agreement;
AND WHEREAS the Respondent is committed to compliance with the Act generally, and the deceptive marketing practices provisions (Part VIl.l) specifically;
AND WHEREAS the Commissioner and the Respondent agree that upon the signing of this Consent Agreement, the Parties shall file the Consent Agreement with the Competition Tribunal for immediate registration;
AND WHEREAS the Commissioner and the Respondent understand that upon registration, this Consent Agreement shall be enforceable as if it wer<:: an order rendered by the Competition Tribunal pursuant to section 74.12 of the Act;
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NOW THEREFORE in order to resolve the Commissioner's Inquiry into certain aJleged deceptive marketing practices of the Respondent, the: Parties hereby agree as follows;
I. Interpretation I. For the purpose of the Agreement, the following definitions shall apply: a. "Affiliate" shall have the meaning ascribed to it in the Act; b. "Agreement., means this Consent Agreement entered into by the Respondent and the Commissioner of Competition;
c. ''Commissioner" means the Commissioner of Competition, appointed pursuant to section 7 of the Act, and her/his authorised representatives;
d. "Parties" means the Commissioner of Competition and the Respondent; e. "Person" means any individual, partnership, firm, corporation, association, trust, unincorporated organization or other c:ntity;
f. "Products" means any goods or sc:rvices supplied, sold or promoted by the Respondent;
g. "Related Person" means any of the Rc~spondent, his Affiliates, any present or future person under the control of the Respondent and his Affiliates;
h. "Respondent" means Everette Grattan; and i. "Tribunal'' means the Competition Tribunal established by the Competition Tribunal Act Canada, R.S.C. 1985, c. 19 (2°d Supp.), a<; amended.
II. Applicat1ion 2. The provisions of the Agreement shall apply to: a) the Respondent, all corporations, partnerships or persons under legal or contractual obligation of the Respondent or who, in connection with the marketing or sale of the Fuel Saver Pro, act for, on behalf of or in concert with the Respondent. including the directors, officers and employees of the Respondent, their respective successors and assigns, and other persons including agents, representatives and associates of the Respondent; and
b) the Commissioner.
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A. NO FALSE OR MISLEADING STATEMENTS 3. In the marketing of products and services, including via the Internet and by email, the Respondent shall comply with the Misleading Advertising and Deceptive Marketing Practices provisions of the Act, which provide:
"52( I) No person sllllll, for the purpose ofp romoting, directly or indirectly, the supply or use ofa product or for the purpose ofp ro111ati11g. dirc·ctly or imlire('(/y, auy business interest, by a11_v 111ea11s whatever, k11owi11gly or recl.:les~ly make a represe/lfatin11 to !lu• public that is/<1/se or mi.sleadi11g ill" material respect."
"74.01 (I) A person e11gages in n:1·iewable co11d11c·t wl'to. for the p111pose ofpromnti11g, directly or imlirecr/y, the supply or use ofa product orfo,. the purpose ofp ro111oti11g. directly or i11directly, any business imerest. by a11y means whatever.
(ll) lllllkcJ a rep1<'\·e11tatio11 to rhe public rlrat is false or mi.sleadi11g i11 a material respect: ( b) makes a represemation to the public i11 rite fnrm 01'" statement, ~rarra111y, or g11ara11tec of the pelfomumce, efficacy or length of life of a product tlrat is 1101 based 011 at/equate and pmper rest thereof the proof of whiclr lies 011 tile 1>enw1 mt1ki11g the rt'p1·t·sematio11"
4. Neilher the Respondent nor any Related Person shall make, cause to be made, or permit to be made on their behalf, any representation whatsoever in Canada or available to consumers in Canada by any means whatsoever, includ1ing via Internet and email, which is false or misleading in a material respect.
5. Neither the Respondent nor any Related Person shall make, cause to be made, or permit to be made on their behalf, any representation whatsoever in Canada or avai table to consumers
in Canada by any means whatsoever, including via Internet and email, in the fonn of a statement, warranty. or guarantee of the performance, efficacy or length of life of a product that is not based on adequate and proper tests. When making such representations, the Respondent shall obtain proof of adequate and proper testing prior to making the representations. Copies of these tests shall be provided to the Commissioner by the Respondent to be reviewed by the Commissiolfler in order to determine whether the tests are adequate and proper.
B. ADMINISTRATIVE MONETARY PENALTY 6. The Respondent shall pay an administrntive monetary penalty in the amount of $2.000 dollars.
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c. FORM or PAYMENT 7. The payment referred to in paragraph 6 above shall be made fonhwith, and no later than the point of registrntion of the Agreement and shall be in certified funds, cashier cheque or by wire transfer.
D. COMPLIANCE PROGRAM 8. The Respondent shall conduct his business in u manner consistent with the Commissioner's Information Bulletin on .. Corporate Compliance Programs" published on the Competition Bureau's web site at www.ch-bc.gc.ca
9. Thirty days following the registration of this Agreement. the Respondent shall provide a written report to the Competition Bureau advising in detail the steps taken by the Respondent to ensure that he has comphed and is complying with this Agreement.
I 0. Upon written request of the Deputy Commis:sioner of Competition. Fair Business Practices Branch, the Respondent shall submit a written report on 30 days notice, with respect to any aspect of this Agreement.
E. FAILURE TO COMPLY 11. A failure to comply with the terms of this Agreement by the Respondent, his Affiliates or any Related Person shall be deemed to be a breach of this Agreement by the Respondent.
F. TERM OF AGREE'.\1E~T 12. Unless otherwise specified, this Agreement shall be binding upon the Respondent und any Related Person as defined herein for a period of ten (10) years following the date of registration of this Agreement.
IJ 1. Notipes 13. Notices pursuant to the Agreement shall be given to the Parties at the following addresses or facsimile numbers:
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(a) The Commissioner Raymond Pierce Deputy Commissioner of Competition Fair Business Practices Branch Competition Bureau Place du Portage. Phase 1, 50 Victoria Street Gatineau (QC) KIA OC9
Telephone: (819) 997-1231 Facsimile: (819) 953-4792
With copies to: William Miller General Counsel Department of Justice Competition Law Division Competition Bureau Place du Portage, Phase 1. 50 Victoria Street Gatineau (QC) KIA OC9
Telephone: (819) 953-3903 Facsimile: (819) 953-9267
Lome Ptack Counsel Department of .Justice Competition Law Division Competition Bureau Place du Portage, Phase I, 50 VicLUria Street
Gatincau (QC) KI A OC9
Telephone: (819) 956-6891 Facsimile: (819) 953-9267
(h) The Rei,;.pondcnt Everette Grnttan 4 I 4 Route 628. Manzer Road Penniac. NB E3A 8X6
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IV. General 14. The Agreement shall be governed by and interpreted in accordance with the laws of Canada applicable therein.
15. The parties acknowledge and agree that this agreement is subject to the provisions of section 74.13 of the Act but specifically agree that no application shall be brought thereunder with respect to paragraphs 3, 4, or 5 hereof.
The undersigned hereby agree to the registration of this Consent Agreement. DATED at Fredericton, in the Province of New Brunswick this 19th day of December, 2005. "Everette Grattan" Everette Grattan
DATED at Gatineau, in the Province of Quebec this 20th day of December,2005. "Raymond Pierce" Raymond Pierce Deputy Commissioner of Competition
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