20 Apr Pruning Back Overgrown Green Claims in Canada
Kelly Harris + Lauren Shrubb
Environmental claims remain an area of active scrutiny in Canada, with regulators and law makers continuing to refine how these claims should be supported and presented. Two recent developments offer a useful snapshot of where green advertising law is heading, although it might not be in the same direction.
New Self-Regulatory Advisory
Ad Standards has released a new Environmental Claims Advisory under the Canadian Code of Advertising Standards. The guidance focuses on how claims are likely to be understood in practice, emphasizing that both express statements and overall impression must be supported by reliable evidence. The advisory emphasizes familiar risks to avoid, including broad or vague claims, overstating environmental benefits, and relying on disclaimers to qualify otherwise misleading messages.
It also highlights recent Council decisions concerning green advertising claims, including finding that an ad that violated on the Code by making broad “save the planet” claims that were based on third party sustainability certifications. In another case, Council found an ad violated the Code by making claims that the advertiser was carbon neutral (alongside nature imagery), and suggesting that purchasing the advertiser’s products was good for the future, and would make the planet better and save the environment.
These recent decisions reinforce that green advertising issues continue to attract consumer attention and will continue to be subject to self-regulatory scrutiny.
Competition Act Amended
Meanwhile, federal green advertising laws have been pulled back slightly. Now in force, Bill C-15 has removed the contentious requirement that environmental claims about a business or business activity be supported by an “internationally recognized methodology.” These claims still need “adequate and proper substantiation”, and while this standard remains new and undefined, it can be distinguished from the adequate and proper “test” requirement that has been applicable under other advertising laws since 1999.
The recent federal amendments also narrow private access to the Competition Tribunal, which is the specialized adjudicator of federal advertising litigation. Private parties can no longer bring “public interest” applications based on these business activity environmental claims – although this remedy remains available (with leave) for product-related environmental claims, as well as for other types of deceptive marketing.
Both of these developments focus on the same underlying concern of ensuring that environmental claims be grounded in evidence and are not overstated. Even as the science that grounds underlying substantiation evolves, green advertising claims must be clearly framed, supported by evidence that matches their scope, and consistent with the overall impression conveyed. If your organization needs support responding to the shifting risks of green advertising, we’re here to help.
This article is for informational purposes only and does not constitute legal advice.
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