PUBLIC CT- 2020-003 COMPETITION TRIBUNAL IN THE MATTER of the Competition Act, R.S.C. 1985, c. C-34; AND IN THE MATTER of a Temporary Consent Agreement pursuant to section 74.12 of the Competition Act regarding conduct reviewable pursuant to paragraph 74.01(l )(b) of the Competition Act;
BETWEEN: THE COMMISSIONER OF COMPETITION Applicant and NUVOCARE HEALTH SCIENCES INC.and RYAN FOLEY Respondents
TEMPORARY CONSENT AGREEMENT WHEREAS the Commissioner is responsible for the administration and enforcement of the Competition Act, RSC 1985, c. C-34 (the “Act”); AND WHEREAS the Commissioner of Competition (the “Commissioner”) has filed an application pursuant to section 74.11 of the Act for an order directing Nuvocare Health Sciences Inc. and Ryan Foley (the “Respondents”) not to engage in certain reviewable conduct or substantially similar reviewable conduct; AND WHEREAS the Respondents market and sell certain natural health products to the public, specifically WeightOFF Max! marketed under Nuvocare’s SlimCentials and NutraCentials brands, Forskolin+ marketed under Nuvocare’s SlimCentials brand, and Forskolin Nx marketed under Nuvocare’s NutraCentials brand (collectively, the “Products”);
AND WHEREAS the Respondents have made and are making representations to the public which convey the general impression that the Products, alone or when used together, will result in weight loss or will bum fat, along with other related claims;
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AND WHEREAS the Commissioner has concluded that the Respondents have made and continue to make these claims systematically, across a wide range of platforms; AND WHEREAS the Commissioner has concluded that the claims are not based on adequ a n d proper testing; AND WHEREAS the Commissioner has concluded that the Respondents have engaged and are engaging in conduct reviewable pursuant to paragraph 74.01 (l)(b) of the Act; AND WHEREAS the Commissioner’s inquiry into the Respondents’ conduct is ongoing; AND WHEREAS it appears to the Commissioner that the Respondents’ reviewable ca u si n g s erio us harm, and that such harm is likely to ensue unless a temporary orde s u b s e ction 74.11(1) of the Act is issued or this Agreement is registered and that th o c ca c o s ioned to nsumers and competition outweighs any harm to the Respondents and therefore that the balance of convenience favours the seeking and issuance of a temporary s u b s e c ti o n 74.11(1) of the Act or the registration of this Agreement to ensure th c e ases w hile he completes his inquiry; AND WHEREAS the Parties are satisfied that this matter can be resolved collaborativ t e m p orary basis with the registration of this Agreement which, upon registration, s a m e f o rc e and effect as an order of the Tribunal; AND WHEREAS IT IS AGREED AND UNDERSTOOD that for the purpose A greem e nt o n ly, including execution, registration, enforcement, variation or r A g r e e m e nt, a nd s u bject to paragraph 8 of this Agreement, the Respondents C o m m is s i o n e r’s co nclusions and agree that they provide a basis for this Temporary A g re e m en t being put in place until this matter is finally resolved by way of of th e C o m p e tition T ribunal, but nothing in this Agreement shall be taken ac ce p tance b y th e R espondents of any facts, wrongdoing, submissions, c o nclusion s n or shal l it derogate from any rights or defences of the Respondents i d e f e n c e s available under the Act; AND WHEREAS IT IS AGREED AND UNDERSTOOD that th A g re e m e n t does no t p r eclude the Commissioner from filing an application f u Pa nder rt V I I .1 of t he A ct at any time, including but not limited to, an sec ti o n 7 4.1 o t f h e A ct; NOW THEREFORE,in order to resolve the Commissioner’s concern o th i s m atter is finally d e t e r m ined, the Parties hereby agree as follows: I. INTERPRETATION l . For the purpose of the Agreement, the following definitions shall apply:
a te c o n d uc t is r u n d e r e h a r m o r d e r u n d e r a t the condu ct el y o n a s h al l ha v e t he s o f th i s es c i s s io n o f th i s a c k no w l e d g e th e C o n s en t a gr e em e n t or ord er a n a s a d missio n o r leg a l ar gu m ent o r n cl u d i n g any e re g i str a t ion t o h f i s o r a n y other ord e r a p p licatio n pu r s uan t to s n a t empora ry bas is u n t i l
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a. “Act” means the Competition Act, R.S.C. 1985, c.C-34; b. “Agreement” means this Temporary Consent Agreement entered into by the Parties pursuant to section 74.12 of the Act; c . “Commissioner” means the Commissioner of Competition appointed pursuant to section 7 of the Act, and his or her authorized representatives; d. “Interpretation Act”, means the Interpretation Act,R.S.C. 1985, c.1-21; e. “Parties” means the Commissioner and the Respondents collectively, and ‘Tarty m ” eans any one of them; f. “Registration Date” means the date on which the Agreement is registered by the Tribunal pursuant to section 74.12 of the Act; g. “Respondents” means Nuvocare Health Sciences Inc. and Ryan Foley; and h. “Tribunal” means the Competition Tribunal established by subsection 3(1) of Competition Tribunal Act, R.S.C., 1985, c. 19 (2nd Supp.), as amended. II. COMPUANCF, WITH THF DFCFPTTVF MARKFTTNC PR ACTICFS PROVISIONS OF THF ACT 2. Within 20 days of the Registration Date, the Respondents shall be prohibited from: a) making, by any means whatsoever, any representation to the public in the form of sta a tement, warranty or guarantee of performance or efficacy of any product that is not based on adequate and proper testing; b) making, by any means whatsoever, any representation to the public in the form of a statement, warranty or guarantee of performance or efficacy that is not adequ b a a te sed on and proper testing about the products WeightOFF Max! under Nut t r h a e Centials and SlimCentials brands, the product For S s l k i o m li C n enti + als under bran t d he , and the product Forskolin Nx under the NutraCentials brand, as well as any other variation of these products; and c) Without limiting the generality of the foregoing, making, by any means any whatsoeve re r, presentation to the public in the form of a statement, warranty or guarantee perfo o rm f ance or efficacy that is not based on adequate and proper testing about the Products’ capacity to:
PUBLIC 4 L cause weight loss; ii bum fat; iiL increase fat release; iv. block fat storage; v. block carbohydrates; vi. cut appetite; vii. decrease emotional eating; viii. target belly fat; or ix. increase metabolism. 3. The Respondents shall, within 30 days of the Registration Date, provide a report to the Commissioner’s authorized representative setting out all actions it has taken to comply with this Agreement. 4. The Commissioner’s costs in the application pursuant to section 74.11 of the Act, as against the Respondents, fixed and payable forthwith in the amount $2,500. m. CF.NF.RAT , 5. Notices, reports and other communications required or permitted pursuant to any of the terms of this Agreement shall be in writing and shall be considered to be given if dispatched by personal delivery, registered mail or facsimile transmission to the Parties at the following addresses: Deputy Commissioner of Competition Josephine Palumbo Competition Bureau Place du Portage, 21st Floor 50 Victoria Street, Phase I Gatineau, Quebec K1A 0C9 Facsimile: (819) 956-2836 With a copy to: Talitlia Nabbali Competition Bureau Legal Services Department of Justice Place du Portage, 22nd Floor 50 Victoria Street, Phase I Gatineau, Quebec K1A 0C9 talitha.nabballojcanada.ca
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The Respondents: Ryan Foley President & CEO
Nuvocare Health Sciences Inc. 10 Four Seasons Place, Suite 1000 Toronto, ON M9B 6H7 With a copy to: John Synie isvme@ils-law.ca 6. This Agreement shall be binding upon the Respondents until the Commissioner’s inquiry is resolved by a final consent agreement or decision of the Tribunal, or such further time period as agreed to by the Parties. 7. The Parties consent to the immediate registration of this Agreement with the Tribunal pursuant to section 74.12 of the Act. 8. Nothing in this Agreement precludes the Respondents or the Commissioner from bringing an application under section 74.13 of the Act where circumstances that led to the making of this Agreement have changed. Subject to this paragraph, the Respondents will not, for the purposes of this Agreement only, including execution, registration, enforcement, variation or rescission, contest the basis for this Temporary Consent Agreement or that circumstances appear to the Commissioner as stated herein. 9. The Respondents shall not make any public statements that contradict the terms of Ag th re i e s ment. 10. The Respondents attorn to the jurisdiction of the Tribunal for the purposes of Ag th re is ement and any proceeding relating to this Agreement for variation or rescission. 1 1 . In the event of a dispute regarding the interpretation, implementation or application of this Agreement, any of the Parties shall be at liberty to apply to the Tribunal for o a r n der or directions. In no event shall any dispute suspend any . time period under Agre th em e ent The Parties agree that the Tribunal has jurisdiction to make such re o q r u d is i e a re r s d to give effect to this Agreement. 1 2. This Agreement may be executed in two or more counterparts, each of which shall be an original instrument, and all of which taken together shall constitute one a s n a d m t e he instrument. In the event of any discrepancy between the English and F v r e e r n si c o h ns of this Agreement, the English version shall prevail.
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PUBLIC 6 13 . The Agreement constitutes the entire and only agreement between the Parties and supersedes all previous negotiations, communications and other agreements, whether written or oral, unless they are incorporated by reference herein. There are no terms, covenants, representations, statements or conditions binding on the Parties other than those contained herein. 14. The computation of time periods contemplated by this Agreement shall be in accordance with the Interpretation Act. For the purpose of this Agreement, the definition of “holiday” in the Interpretation Act shall include Saturday. For the purposes of determining time periods, the date of this Agreement is the last date on which it is executed by the Parties. [The remainder of this page is intentionally left blank]
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The undersigned hereby agree to the filing of the Agreement with the Tribunal for registration. DATED at SsissoM rt. QrkgJli& this QM day of 2020. for: the Respondents, Nuvocare Health Sciences Inc. and Ryan Foley "Origin t a _ l _ S _ i _ gn _ e _ d _ _ b _ y _ R _ y _ a _ n _ F _ oley" Ryan Foley President and CEO Nuvocare Health Sciences Inc. I have authority to bind the corporation. fk DATED at Gatineau in the Province of Quebec this 0 day o£ nOUA , 2020 "Original signed by Matthew Boswell" Matthew Boswell Commissioner of Competition
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