Advertising and marketing law legend Brenda Pritchard explains how it is done

Gowling lawyer inducted into Canada's Marketing Hall of Legends, first to do so

Advertising and marketing law legend Brenda Pritchard explains how it is done
Advertising and marketing lawyer Brenda Pritchard has been named to Canada’s Marketing Hall of Legends

When Brenda Pritchard entered the world of marketing and advertising law in the 1980s, she was only the third lawyer in Canada to specialize in this area. She points out that when she was called to the bar in 1984, it was a time when marketing lawyers were considered “Dr. No” – a major roadblock to the creative process.

Since then, Pritchard says, she’s seen a lot of things in her profession change, including the rising status and importance of marketing and advertising lawyers. But she has also seen many things remain remarkably similar – among them, the need for advertising law practitioners to know a vast number of laws across different areas of practice but all playing a role in how and what Canadians see advertised.

Pritchard is a partner at Gowling WLG and the past leader of its advertising and product regulatory law group. She has spent more than 35 years at the firm, growing and mentoring the largest advertising and marketing law practice in Canada.

Recently, Pritchard was inducted into Canada’s Marketing Hall of Legends, the first time it has given a marketing and advertising lawyer that distinction. “It was an incredibly wonderful surprise,” says Pritchard. “I am extremely honoured to be the recipient of an award that reflects the power of creativity.”

Consistently recognized in some of the most prestigious legal rankings, Pritchard has been named one of Canada’s leading lawyers by Lexpert and was honoured with a Lexpert Zenith Award in 2017.

Pritchard says that her ties with the advertising world began in law school. Her sister, a creative director at an ad agency, suggested that she apply for a summer job as a writer because she thought it would be “fun and interesting,” and Pritchard could display her skills as a writer.

However, Pritchard’s resume floated to the top of the pile on the desk of the lawyer who acted for the agency, someone she describes as the “grandfather of advertising law in Canada.”

A year later, while Pritchard was articling, that lawyer contacted her and asked her to come work with him because he needed “a creative thinker who could write.” The firm specialized in advertising law, and Pritchard worked for large marketing clients and ad agencies. “I got to know both sides of that coin.”

What makes advertising law so interesting, and frankly, so much fun, says Pritchard, is that it blends both creativity and what can sometimes be a rigid regulatory process.

She says: Back in the day, we even had to get all our broadcasting material approved by the Canadian Radio-television and Telecommunications Commission before it aired. “So, there’d be a script, and we had to sell it to the clients, be ready to produce it, and then send it to the CRTC so it could be convinced that it would be okay to broadcast.”

According to Pritchard, advertising law also takes in “hundreds” of rules that could apply both federally and provincially, depending on the product. This includes more heavily regulated products under food and drug laws, including pharmaceuticals, cannabis, and natural health products.

“So, when we are doing a national campaign, we may have to change the credit disclosure for each provincial law that applied, and that means sending a script for legal opinions across the county to get what may turn out to be 10 different answers.”

Pharmaceutical advertising laws can also be very peculiar in Canada – essentially drug advertisers having to choose between mentioning the name of the drug but not what it is for, or talking about the symptoms or condition but not mentioning the drug. Ads could either be of the “good morning, good morning” kind (for Viagra) or of the “see your doctor for more details” kind.

“Unless you have a brand name like Viagra, which everybody already knows what it was for, it is challenging to come across with something interesting and that someone would want to ask their doctor about,” says Pritchard. Often, Canadians watching U.S. television commercials can figure things out because drug advertising in that country is allowed to be more specific in linking a drug with symptoms or conditions.

Social media advertising, such as Facebook and YouTube, has also meant learning how to effectively use these tools within prescribed laws. With social media platforms evolving quickly, advertisers have had to effectively learn how to use every new tool, says Pritchard. “We like to say it’s about learning how to go from ‘boob tube to YouTube’ and learning about new and changing social media platforms.”

Pritchard says that comparative advertising is another fascinating area for advertising and marketing lawyers, given trademark and copyright laws. For example, she notes the Copyright Act states that an advertiser can’t reproduce a competitor’s packaging because that could be copyright infringement. If an advertiser wants to compare its laundry detergent with Tide, Pritchard says it “would need to mock up an orange box with something bluish on it.”

The use of comparative advertising in the battery business also demonstrates some of the marketing challenges. For example, Pritchard points to the case of Energizer versus Duracell batteries. One ad campaign depicted a mechanical bunny, representing the former, that stopped working while the latter’s mechanical toy kept on going. The problem was, Pritchard says, tests showed there wasn’t materially much difference between the two brands when it came to battery longevity. And, to boot, Duracell was “messing around” with the trademarked Energizer bunny.

In this battle, argued by Gowling, Energizer was successful in getting an injunction on this ad just before Christmas, a massive season in the battery biz.

Says Pritchard: “The basic principle of comparative advertising is that it must be both consumer relevant and statistically sound.”

The author of an important textbook on advertising and marketing law in Canada, Pritchard says she has enjoyed mentoring young lawyers on the finer points of this area of practice.

“For most that I worked with, I was able to recognize relatively quickly, when they were students, that they had the traits we were looking for. That they were creative, that they were curious, that they could understand very complex laws, and understand the subtleties of language.”

Founded in 2004, Canada’s Marketing Hall of Legends honours marketing leaders and aims to spotlight the stories, people, and brands behind Canada’s most significant marketing successes and recognizes a substantial body of work and a lifetime of achievements and leadership.

This year, Pritchard and other award winners will be honoured and formally inducted by American Marketing Association Toronto on May 12 at an in-person gala event.

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