From the Desk of Jim Facette, Executive Director, CRCA

On June 20, 2024, Bill C-59 An Act to implement certain provisions of the fall economic statement tabled in Parliament on November 21, 2023 and certain provisions of the budget tabled in Parliament on March 28, 2023 received royal assent.

Of note to the construction community, suppliers included, are amendments to Section 74.01 of the federal Competition Act to address “greenwashing” – false, misleading, or deceptive environmental claims made for the purpose of promoting a product or a business interest.

The new provisions of the Act target environmental claims that promote the environmental, social and ecological benefits of using or supplying a product if the claim is not based on an adequate and proper test (Section 74.01(1)(b.1)), and more broadly, environmental claims that promote the environmental and ecological benefits of a business or business activity that are not based on adequate and proper substantiation in accordance with internationally recognized methodology (Section 74.01(1)(b.2)).

While the facts cited in the environmental claim must be appropriately tested or substantiated, that may not be enough. If the over-all impression of the claim to an average person implies a broader meaning, the implied broader meaning must also be tested or substantiated.

Both sections place the burden of proof on the entity making the environmental claim to demonstrate compliance with the provision.

There is currently no case law on what is required to satisfy "adequate and proper substantiation in accordance with internationally recognized methodology". The term "internationally recognized methodology" is undefined in the Act. Various international, national, and sub-national standards exist, with some being voluntary and others being mandatory. As a result, the scope and meaning of Section 74.01(1)(b.2) is unclear. Further guidance from Canada's Competition Bureau and the Competition Tribunal is required.

On July 22, 2024, the Competition Bureau launched its public consultation to gather input from Canada on specific questions related to the new greenwashing provisions.

Competition Bureau seeks feedback on Competition Act’s new greenwashing provisions - Canada.ca

CRCA has been in communication with other construction related organizations on their respective next steps. We have requested this issue be discussed at the next National Trade Contractors Council of Canada (NTCCC) meeting scheduled for August 21st.