DEC 19 2005 TD COMPETlTION TRIBUNAL IN THE MATTER of the Competition Act, R.S.C. 1985, c. C-34 as amended; AND IN THE MATl'ER ofa n inquiry commenced punuant toaubparagraphs IO(l)(l>)(ii) and(iil) of the Competition Act into certain deceptive marketing practices of Cory Grattan and Tracey
Orattan;
AND IN THE MATTER of the filing and registration of a Consent Agreement pursuant to section 14.12 of the Competition Act.
N: COMPETITION TRIBUNAL TRIBUNAL DE LA CONCURRENCE THE COMMISSIONER OF COMPETITION F P Appllaat I R L DEC 19 2005 0 £ 0 ~~ D U I REGtSTRAR - REGISTRAIRE T OITAWA, ON 00 \ Q CORY GRATl'AN A.ND TRACEY GRATTAN Reapoadentl
CONSENT AGREEMENT WHEREAS the Commissioner of Competition (the ..C ommissioner'') is head of the Competition Bureau and is responsible for the administration and the ~t of the Co#fpltition JI.ct (the
"Act") including subsections 52(1) and 74.0l(l)(a) and 74.0l{l)(b);
AND WHEllL\S tho Respondents. Cory Orattan and Tracey Grattan. aro individaals resklina in the province of New Bnmswick; AND WHEREAS the Respondents promote and/or sell a variety ofp roducts and services including the Fuel Saver Pro through various means including over the Internet;
AND WRl!UAS on September 26. 2005, the Commissioner commenced an inquiry (the "Inquiry") pursuant to section 10 of the Act into certain alleged deceptive marketing practices of Cory Grattan. notably the sale and promotion of an allcaed fuel 91.Vina device, the Fuel Saver Pro;
AND WHEREAS on October 30, 2005, the Inquiry was amended to include Tracey Grattan; A.ND WHEREAS the Commissioner has concluded, and the Respondents admowledp, that fi:om at least January l, 2002 and continuing to May 31, 2004, the exact dates being unknown, die Respondents directly or indirectly, made or caused to be made, representations "the
Representations'' to the public through bulk unsolicited email messages ("SPAM,,) for the purposes of promoting an allepl fuel savina device, 1he Fuel Saver Pro, which were false or
misleading in a material respect, thereby cnpging in reviewable conduct contrary to subsections 74.0t(l)(a) and 74.0t(l )(b) of tho 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 amoral impression that the use of the product would significantly increase fuel efficiency and reduce emissions;
AND Wll£REAS the Commissioner believes that these pneral impresaions are materi.ily false and/or misleading, that the Fuel Saver Pro does not increase fuel efficiency nor reduce emissions, and that the 1ep1eamtations which were in the form of a statement oft he performance and the
efficacy of the products were not based on adequate and proper tests;
AND WHEREAS the Commissioner has concluded IDd the Respondents 8"nowledge that they have engapd in reviewable conduct within the meaning of paragraph 74 .01 ( 1) (a) ("false or nlllleading representations'j and paraarapb 14.01 {1 )(b) ("atatementt of perfonnance not based on adequate and proper test");
AND WHEREAS the Parties arc satisfied that this matter can be resolved with tho registration of this Consent Agreement;
AND WHEREAS tho Respondents are eommitted to compliance with the Act pnerally. and the deceptive marketing practices provisions (Part VII.1) specifically;
AND WHEREAS the Commissioner and the Respondents ape that upon the signing ofthia Consent Agreement, the Parties shall file the Consent Agreement with the Competition Tribwial for immediate registration;
AND WHEREAS the Commissioner and the Respondents understand that upon registration, this Consent Aareement shall be enforeeablc u if it were an ordtr rendered by the c.ompetition
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 alleged deceptive marketina practices of the Respondents, the Parties hereby 8IR'C as follows; I. lnteQPTetatioD 1. For the purpose of the Agnmlent, the fottowma definitions shall apply: a. "Aflillate" shall have the meaning ascribed to it in the Act; b. "Apee-t" means this Consent Aafeetnent entered into by the llespondcnta and the Commissioner of Competition;
c. "Comminloaer" meana the Commilsioner of Competition, appointed punuant to section 7 of the Act, and her/his authorised representatives;
cl. •Partlel" means the Commissioner of Competition Ind the Respondents; e. "Penon" means any individual, partnership, firm, corporation, association, trust, unincorporatect orpniution or other entity; f. "Products" means any goods or services supplied, sold or promoted by the Respondmts;
g. "Related Person" means any of the Respondents. their Affiliates. any present or fiUure pa10D under tho control of the Respondents and their Aftlliates;
h. "Respondents" means Cory Grattan and Tracey Grattan; and i. -TrllMnlal" means the Competition Tribunal established by tho C011tpetltta11 Tribunal Act Canada, R.S.C. 1985, c. 19 (2nd Supp.), as amended.
II.,&. ..... 2. The provisions of the Agreement shall apply to: a) the Respondents, all corporations, partnerships or persons under legal or contractual obligation ofa ll or any oft he Respondents or who, in connection with the marketing or sale oft he Fuel Saver Pro, act fOr, on behalf of or in concert with all or any oft he Respondents. including the directors, officers and employees of the Respondents, their respective succeaot1 and assigns, and other persons incJudina apnts. tepreHntatives and associates of all or any of the Respondents; and b) the Commissioner. -3-
A. NO FALSE OR MISLEADING STATEMENTS 3. In the marketing of productt and services, including via tho Internet 8JMl by email. tho Respondents shall comply with the Misleading Advertising and Deceptive Marketing Practices provisions of the Act, which provide:
"52(1) No penonshall,for th1 purpose ofp romoting, dil'1ctly or indirectly, tile supply or use ofa product or for tlte /lfll'POle ofJ WOlftOlbtf, 4iNedy 01' ilulifWdly, _,,. """*'' illumt, by M.Y""""' wlroteWr. browile.fJ }t or recJclasly make a representatWn to tile publtc tllat is false or misleodi11g in a maJerial respect." '"14.0J (I)A pm01t ~in~ co11duct wlto,for tlie Jlflll'POffofJ H'O'lffOlbtg. Jim:t/yOI' indmtly. the supply or use ofa product orf or the purpose ofp romoting. directly or indirectly, any business interest, by "">' IWlllrl whatewr, (a) makes a representation to the public that is false or misleading in a material respect; (b) ,,,., o ~n to IM /lflbllc 111 tlte fonrt o/a ltotnJettt. WOl?'alltly, or guortlllln of IAe performance, efficacy or /611fth of life of a product that is not based 011 adequate and proper ten thereof. tlw p1'00/ ofw hldt ltn 011 IM ptn01t lf/Ulkbtf ,,,. l'flWlntalk>n" 4. Neither the Respondents nor any Related Person shall make, cause to be made, or pennit to be made on their behalf, any representation whatlOeVer in Canada or available to consumers
in Canada by any means whatsoever, including via Internet and email, which is false or misleading in a material respect.
S. Neither the Respondents nor any Related Person shall make, cause to be made, or pennit to be made on their behalf, any~tation whatsoever in Canada or available to consumers in Canada by any means whatsoever. includina via Internet and email, in the fonn of a statement, warranty, or guarantee of the perfonnance. efti'*)' or leagth of1 ife of a product that is not based on adequate and proper tests. When making such representations, the Respondents shall obtain proof of adequate and proper teatina prior to makil'18 the representations. Copies of these tests shall be provided to the Commissioner by the Respondents to boreviewed by the Commissioner in oider to dctc:nninowhcthcrtheteatsate adequate and proper.
B.. ADMINISTRATIVE MONETARY PENALTY 6. The Respondents shall pay an administrative monetary penalty in the amount of SS000.00 doJlars.
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C. FORM OF PAYMENT 7. The paymcrlt refemd to in par81f1Ph 6 above Bhatt be made forthwith, and no lats than the point of registration of the Agreement and shall be in certified funds, cashier cheque or by wire tnmsr.. D. COMPLIANCE PROGRAM 8. The Reapondents shall conduct their business in a manner consistellt with the Commissioner's Infonnation Bulletin on "Corporate Compliance Programs" published on &he Competition Bureau"• web lite at wwwa-.b£18'8 9. Thirty days following the registration of this Agreement, the Respondents shall provide a written report to the Compctitioft B\Jl'OIU advising in detail the steps taken by the Respondents to ensure that they have complied and are complying with this Agreement.
10. Upon written request of the Deputy Commisaiofter of Competition., Fair Business Practices Branch, the Respondents shall submit a written report on 30 days notice, with Napect to any aspect of this Ap:iement.
E. FAILURE TO COMPLY t 1. A failure to comply with the terms of this Agreement by the Respondents, their Affiliates or any Related Person shall be deemed to be a breach oft his Agreement by the ltespondents.
F. TERM OF AGREEMENT 12. Unleu otherwise specified, this Agreement shall be bindin1 upon the Rapondmta and any Related Person as defined herein for a period often (10) years following the date of registration of this Agreement.
W.Notiees 13. Notieos pursuant to the Apecment shall be given to the Parties at the following adchsses or facsimile nmnbers:
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(a) The Collllllilstoaer Ra)'mODd Piel'Qe Deputy Commissioner of Competition Fait Buskteu Practices Branch Competition Bureau Place du Portap. Phase I, $0 Victoria Streec Gatineau (QC) KIA OC9
Telephone: (819) 997-1231 Facsimile: (819) 9S3-4792
Wldl coplel to: William Miller General Counsel DepartnientofJustice Competition Law Division Competition Bureau Pllce du Portap, Phase 1t SO Victoria Street Gatineau (QC) KIA OC9
TelcphOne: (819) 953-3903 Facsimile: (819) 953-9267
LomePtack Counsel Deplnment of Justice Competition Law Division Competition Buiau Place du Portage, Phase l t 50 Victoria Street Gatineau (QC) Kl A OC9
Telephone: (819} 956-6891 Facsbnile: (819)953-9267 (b) The Respondents Cory Orattlt1 and Tracey Grattan 63 Tanya Avenue DouaJas. NB,. E3A 9R7 -6-
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, 5 or 6 hereof.
The undersigned hereby agree to the registration of this Consent Agreement. DATED at Fredericton, in the Province of New Brunswick this 16th day of December, 2005. "Cory Grattan" Cory Grattan
DATED at Fredericton, in the Province of New Brunswick this 16th day of December, 2005. "Tracey Grattan" Tracey Grattan
DATED at Gatineau, in the Province of Quebec this 19th day of December, 2005. "Raymond Pierce" Raymond Pierce Deputy Commissioner of Competition
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