By Andrée-Anne Perras-Fortin & Samuel Ross[1]

On November 28, 2023, the federal government released its bill entitled An Act to implement certain provisions of the fall 2023 economic statement. This bill includes amendments to the Competition Act that could introduce provisions of interest to marketing and advertising.

Firstly, certain amendments relating to deceptive commercial practices would explicitly target greenwashing. Any statement, warranty or guarantee of a product’s benefits for protecting the environment or mitigating the environmental and ecological effects of climate change that is not based on an adequate and proper test, the proof of which lies on the person making the representation, could constitute a misleading commercial practice[2].

However, the new provision only applies to “products”. Consequently, representations concerning corporate practices to combat climate change are excluded. In addition, the notion of “adequate and proper test” has yet to be defined.

Secondly, a new certificate may be issued by the Commissioner of Competition (the “Commissioner”) for agreements and arrangements that are for the purpose of protecting the environment. Thus, at the request of the parties to the agreement or arrangement, the Commissioner could issue a certificate indicating that such an agreement or arrangement concluded with the aim of protecting the environment is satisfying as it would not be likely to prevent or lessen competition substantially in a market[3]. This new mechanism could enable competitors to collaborate on environmental matters without engaging in reviewable conduct, and without being accused of breaching the conspiracy and competitor collaboration provisions.

Finally, the federal government would tighten up obligations relating to price indications, ensuring that a price failing to mention a fixed obligatory charge or fee would constitute a false or misleading representation within the meaning of the Competition Act[4].

We will certainly keep a close eye on legislative developments concerning this bill, which could have substantial implications for Canadian competition law, including as regards environmental claims.  

If you have any questions about advertising or any other advertising initiative, please do not hesitate to contact the members of our Advertising and Marketing Law and Regulatory Affairs teams.

[1] Andrée-Anne Perras-Fortin is a Lawyer and Partner, and Samuel Ross is an Associate at ROBIC, LLP, a multidisciplinary firm of Lawyers and Patent and Trademark Agents. They would like to thank Charles-Étienne Ostiguy, articling student, for his contribution to this article.

[2] An Act to implement certain provisions of the fall 2023 economic statement, 1st sess., 44th legis. (Can.), s. 236.

[3] Id., s. 265.

[4] Id., s. 234(1).