By Stephanie Forshee
Indoor tanning salons across Canada are attracting customers with splashy advertisements boasting the health benefits of their devices.
Places like The Beach Tanning Studio in North Vancouver make statements on their websites such as: “The sun has been a source of light and life on earth since the beginning of time. Now you can receive the nourishing effects of the sun and Vitamin D at any of our conveniently located salons.”
Other Canadian salons make claims that indoor tanning can help with depression, diabetes, thyroid disease and other conditions. There is a heated debate over whether those claims are substantiated or if they are, in fact, advertising violations.
Generally, Canadian health experts don’t promote tanning, and Health Canada warns consumers about the dangers of using these devices.
“There is no such thing as a safe or healthy tan, indoors or outdoors,” said Health Canada spokeswoman Suzane Aboueid, in an email.
Even still, the Canadian Competition Bureau has done little to stop salons from making these health claims.
The bureau launched an investigation against Calgary, Alberta-based tanning salon chain Fabutan Corporation back in 2005. Regulators accused the company of deceptive advertising practices, underscoring the supposedly unfounded claims of health benefits it made.
However, just months later, the bureau reached a settlement with Fabutan on January 16, 2006. In the final consent order, which spanned 10 years, the Competition Bureau essentially gave permission for the salon chain to make claims of Vitamin D benefits if a device emits UV light.
But it came with a catch: the salon was ordered to attach a rather lengthy disclosure to any advertisements making such claims, warning of the associated dangers and ties to skin cancer. The bureau did not, however, permit the salon to make claims of other health benefits.
Today, on Fabutan’s website, visitors will easily find mentions of the benefits of Vitamin D. There are no disclosures made alongside those claims, which Brenda Pritchard, advertising and marketing law partner at Gowling WLC in Toronto, finds risky, despite the expiration of the consent order.
Pritchard admits the tanning salon would not necessarily be subject to civil or criminal charges for violating the consent order, which lapsed roughly two years ago, “but [the Competition Bureau] could investigate them again and come back at them and it would be much more serious.”
A spokeswoman for Fabutan declined to comment for this article.
The penalties could indeed be much steeper. When Fabutan was fined in 2006, it paid $62,500 and its top executive was ordered to donate $12,500 to a charity. At the time, the maximum penalty for misleading advertising provisions by a corporation was $100,000, and $200,000 for subsequent violations. Now with a 2009 amendment, civil penalties max out at $10 million for first violations and $15 million for additional offenses.
And those subsequent penalties can be enforced. In 2012, the Competition Bureau charged water heater rental company Direct Energy Marketing Limited with implementing return policies designed to prevent customers from switching to a competitor. The federal agency, which was seeking $25 million, announced the investigation about 10 months after a 10-year consent order had lapsed for the company’s predecessor Enbridge Services. The bureau said in a press release it had “determined that Direct Energy re-engaged in similar conduct after the consent order expired.”
Kevin Ackhurst, head of antitrust and competition with Norton Rose Fulbright Canada, did not comment directly on Fabutan’s case or the tanning industry at large but said generally, once a consent agreement has expired, companies need to carefully consider how they choose to proceed with the behavior originally in question. “Because one of the provisions of the consent agreement is to comply with the law…the Bureau has clearly expressed to you that what you were doing previously violated the act, I think it would be particularly risky to start engaging in that conduct again,” he says.
Even indoor tanning advocates can be skeptical of salons making health claims. Steven Gilroy is the executive director for the Joint Canadian Tanning Association. He’s been working in the industry for more than three decades and currently operates a salon called D Tan Sunlight Centre in West Kelowna, British Columbia. He believes indoor tanning does have health benefits, but he doesn’t advise salon members to market in this way (even though the association’s website does.)
“We don’t sell the product based on that,” Gilroy says. “The product was originally designed to build a base tan. The product was not designed for medical reasons.”
In fact, Gilroy isn’t one to fight battles on behalf of the industry that don’t need to be fought. He says the association of more than 650 salons, suppliers and manufacturers has largely given up on defending the right to allow minors to use tanning equipment–one of the biggest regulatory hurdles the industry has faced in recent years.
“We’ve pretty much moved on from the under-18 part,” Gilroy says. “We’re pretty much like the alcohol business. It’s all about moderation, or responsible tanning. It’s pretty hard to change any commitment from government in regards to … regulation here in Canada. Once they’re done, they’re done.”
Competition Bureau spokesperson Marie-France Faucher makes clear that the agency is not afraid to go after companies that violate advertising laws. It “takes all allegations of deceptive claims very seriously, including deceptive health claims, and will not hesitate to take action where necessary.”
What is less clear is whether the bureau has an interest in curbing this behavior when it comes to tanning salons.
Pritchard predicts the Competition Bureau’s consent order with Fabutan is a strong indicator of how it will supervise tanning salons moving forward. She advises salon owners to familiarize themselves with Fabutan’s 2006 consent order.
“When you see a notice like this and you’re in the same industry you have to be very careful about what you say because you could be next on the chopping block,” she says.
Among the salons in Canada making claims of the health benefits of Vitamin D or other conditions are Tan de Soleil, Radiant Tanning, Vancouver Sun Tan, The Beach Tanning Studio at Lynn Valley Village, Kix Tan, You Tan, SunSpace, Cowabunga Tanning, Palm Beach Mega Tan, La Bella Sole and Beach House Tanning.