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Tier 3: Thinking strategically
Whilst the bottom two layers of the Pyramid focus on improving how you currently operate across the key aspects of a legal function, the third tier is about thinking aspirationally.
Canada | Publication | July 29, 2024
On July 22, the Competition Bureau officially opened its public consultation1 to inform its enforcement guidelines for the new greenwashing provisions under the Competition Act (Act) that came into force on June 20, 2024, with the passing of Bill C-592.
The consultation process is intended to provide the Competition Bureau (Bureau) with input from the public regarding enforcement of the Act’s two new greenwashing provisions:
The Bureau is specifically seeking submissions on compliance hurdles faced by businesses, common environmental claims, claims prone to inadequate testing, relevant considerations for evaluating claims, and any other information that may be pertinent to the Bureau’s future enforcement activities under this provision.
The Bureau has asked for feedback regarding commonly made claims and those claims that are less likely to be adequately substantiated. The Bureau is also seeking input from stakeholders as to what “internationally recognized methodologies” the Bureau should consider when evaluating whether claims about the environmental benefits of a business or business activities have been “adequately and properly substantiated.” The request for this input from industry confirms there is no obvious consensus as to what substantiation in accordance with “internationally recognized methodology” actually means and confirms that the frustration and concerns industry expressed over ambiguity in the new law were warranted.
The Bureau will consider the feedback it receives as it develops enforcement guidance on environmental claims.
The consultation period ends September 27, 2024. If you are interested in submitting comments to the Bureau, we encourage you to reach out to a member of our competition and antitrust team listed below.
In addition to opening a public consultation on the Act’s new greenwashing provisions, the Bureau also released the new Deceptive Marketing Practices Digest – Volume 73 (the Digest) on July 22, 2024.
The Commissioner acknowledged in the Digest that the Act’s new greenwashing provisions “have attracted considerable attention” and “consumers and businesses want to understand how and when the Bureau will take action under these new provisions.”
Below are some highlights from the Digest:
The Bureau is in the process of developing its enforcement approach for evaluating and enforcing environmental claims. While the Bureau has offered some feedback to stakeholders through the Digest, it is clear companies must wait for more formal guidance from the Bureau to assist them in understanding how best to comply with the new greenwashing provisions. Companies and industry associations should use this opportunity to shape the Bureau’s approach by making their views heard and participating in the public consultations.
The authors would like to thank Julia Dyke, summer student, for her contribution to preparing this legal update.
Publication
Whilst the bottom two layers of the Pyramid focus on improving how you currently operate across the key aspects of a legal function, the third tier is about thinking aspirationally.
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