Memorandum of Understanding between the Competition Bureau and Health Canada

Purpose

Health Canada and the Competition Bureau (the "Bureau") wish to acknowledge their important relationship and recognize that cooperation can contribute to improved delivery of Health Canada and the Bureau's (the "Participants") respective mandates as they relate to health products^{Footnote 1}. Both the Bureau and Health Canada share the commitment of protecting Canadians against false, misleading, and deceptive advertising and marketing practices. The Participants carry out enforcement actions to ensure compliance with the advertising / marketing provisions of their respective legislation.

Introduction

The Bureau is an independent law enforcement agency that protects and promotes competition for the benefit of Canadian consumers and businesses. Headed by the Commissioner of Competition, the Bureau is responsible for the administration and enforcement of the Competition Act, the Consumer Packaging and Labelling Act (except as it relates to food), the Textile Labelling Act and the Precious Metals Marking Act. As part of this mandate, the Bureau is responsible for the deceptive marketing practices provisions of the Competition Act. The Deceptive Marketing Practices Directorate detects, investigates and deters false or misleading representation and deceptive marketing practices identified under the Competition Act.

Health Canada is responsible for helping Canadians maintain and improve their health. The Department oversees health product regulatory advertising activities, to ensure that health product advertisements are not false or misleading. Health Canada delivers its compliance and enforcement programs to ensure compliance with the advertising provisions of their respective legislation including the Food and Drugs Act, the Controlled Drugs and Substances Act, and their associated regulations. Health Canada is committed to truthful and accurate marketing, to help Canadians make informed decisions about their health, in collaboration with their health care professionals.

There are three Health Canada directorates responsible for the handling of compliance and enforcement issues involving the advertising of health products: the Marketed Health Products Directorate within the Health Products and Food Branch, and the Health Product Compliance Directorate and the Medical Devices and Clinical Compliance Directorate within the Regulatory Operations and Enforcement Branch.

Understanding

The Competition Bureau plays an important role in fostering a fair marketplace and enabling informed consumer choice for the benefit of consumers and the economy in Canada. Health Canada is responsible for matters of public health and safety, and the promotion and preservation of the health of the people of Canada. The Participants establish this Memorandum of Understanding (the "MOU") to advance their mutual interests and to develop a framework for cooperation to assist in the delivery of their respective mandates.

To achieve the purpose of this MOU, each Participant will promote the benefits of, and encourage, cooperation with the other Participant throughout all levels of its organization.

Where possible, in the context of potential false, misleading, or deceptive advertising or marketing practices relevant to the Participants' mandates and jurisdictions, and subject to their respective confidentiality obligations and applicable legislation, the Participants will:

1. Share information on complaints or inquiries, within the Participants' respective mandates, related to false, misleading or deceptive health claims;
2. Notify each other with respect to matters of mutual interest and exchange timing and other procedural information related to these matters;
3. Share and respond to requests for information related to the administration and enforcement of each Participant's legislation, strategic priorities, marketplace trends, policy and matters that may be of mutual interest;
4. Participate in knowledge transfer sessions to increase expertise in areas of mutual interest related to the laws the Participants administer and/or enforce, including, where appropriate, information obtained from international bodies related to the mandates of the Participants;
5. Coordinate communications (e.g., news releases and consumer alerts), where appropriate; and
6. Meet at least semi-annually to discuss the items enumerated above and to explore further opportunities for cooperation and coordination.

Participant Representatives

The following officials are designated as the departmental representatives for purposes of this MOU and any notices required under this MOU will be delivered to:

For Health Canada

Directors General of the Marketed Health Products Directorate, the Health Product Compliance Directorate, and the Medical Devices and Clinical Compliance Directorate of Health Canada or their designates.

For the Bureau

The Deputy Commissioner of Competition, Deceptive Marketing Practices Directorate, Cartels and Deceptive Marketing Practices Branch

Confidentiality

Each Participant will treat information received from the other Participant in accordance with its security classification and will provide equivalent protection to that information while it is in the receiving Participant's possession.

The Participants will not exchange or use information if doing so would contravene any relevant legislation including, but not limited to, the Competition Act, the Food and Drugs Act, the Privacy Act, the Access to Information Act, and the Library and Archives of Canada Act, or if doing so would contravene any applicable policies including the Policy on Government Security and supporting directives covering the safeguarding of personal and confidential information. Each Participant will take all reasonable measures to preserve the confidentiality, integrity, and availability of the information provided by the other Participant, and to safeguard the information against accidental or unauthorized access, use or disclosure.

The Participants will limit access to the information to those of its employees whose duties require such access and who have the appropriate security clearance and a need to know.

Each Participant will notify the other as soon as possible should it receive a request from a third party for disclosure of non-public information received from the other Participant. Neither Participant will disclose any non-public information obtained from the other Participant to any third party without the written consent of the other Participant, except as required by law.

Where disclosure is required by law, the Participant that is required to disclose the non-public information will consult with the other Participant on how to protect its interests and the interests of any third parties whose information could be disclosed.

Nothing in this MOU is intended to preclude the disclosure of any information that either Participant may be required or ordered to disclose under or pursuant to the Access to Information Act or the Privacy Act.

A Participant may use information provided by the other Participant for a purpose different from that for which the information was initially obtained, provided that the subsequent different use is (at the time of the different use) authorized by law.

For clarity, termination of this MOU does not release a Participant from any commitments set out in this provision.

Settlement of Disputes

Any disputes concerning the interpretation or implementation of this MOU will be resolved through consultation between the Participants.

Term

This MOU will take effect on the date of last signing and will remain in effect unless terminated in accordance with the Termination provision set out below.

Amendment

Any provision of this MOU may be modified at any time with mutual consent of the Participants by an exchange of letters between the persons occupying the position of the signatories to the MOU.

Termination

Either Participant may terminate the MOU within 30 days of providing written notice to the other Participant. Any files containing information obtained under the MOU will continue to be maintained by the Participants in compliance with the confidentiality provisions of the MOU.

Execution / signatures

In witness whereof, the Participants have caused this MOU to be executed by their authorized representatives as set forth below

On behalf of Health Canada:

• Kelly Robinson
  Director General
  Marketed Health Products Directorate,
  Health Products and Food Branch
  Signed: October 5, 2023
• Kim Godard
  Acting Director General
  Health Product Compliance Directorate,
  Regulatory Operations and Enforcement Branch
  Signed: October 17, 2023
• Christine Leckie
  Director General
  Medical Devices and Clinical
  Compliance Directorate,
  Regulatory Operations and Enforcement Branch
  Signed: October 30, 2023

On behalf of the Bureau:

• Josephine Palumbo,
  Deputy Commissioner of Competition,
  Deceptive Marketing Practices Directorate,
  Cartels and Deceptive Marketing Practices Branch
  Competition Bureau
  Signed: November 1st, 2023