Advocacy

Competition Bureau
ATTN: Commissioner Matthew Boswell
Deceptive Marketing Practices Directorate
50 Victoria Street
Gatineau, QC, K1A 0C9

September 27, 2024

Dear Commissioner Boswell, 

We are pleased to contribute to the Competition Bureau’s (hereafter, “the Bureau”) public
consultation process on the recently added greenwashing provisions in the Competition
Act (hereafter, “the Act”)

The Business Council of Alberta (“BCA”) is a non-partisan, non-profit organization
composed of the chief executives and leading entrepreneurs of Alberta’s largest
enterprises. We are dedicated to building a better and more prosperous Alberta within a
strong Canada.

BCA and its members strongly support the ideals of accuracy and transparency, and our
members work tirelessly to uphold these values in all that they do – including when making
public statements about environmental benefits of products, services, and business
activities.

However, BCA has serious reservations about the new deceptive marketing practices
provisions added to the Act through Bill C-59. Frankly, last-minute amendments to an
omnibus budget implementation bill are not the proper vehicle for ensuring that legislation
is properly considered and debated with all affected stakeholders. Moreover, shifting the
task of interpreting and enforcing these poorly worded and vague amendments onto the
Competition Bureau is entirely unfair to the Bureau. We sympathize with the Bureau for the
unenviable task at hand.

We believe that these new provisions are ill-defined, poorly constructed, and lack
consideration of the unintended consequences that will likely result. Furthermore, these
efforts are being undertaken while securities regulators and standard-setting bodies like
the Canadian Sustainability Standards Board are undergoing parallel processes to establish
their own rules and guidelines for communicating environmental claims. How these
separate initiatives will layer and interact is creating additional uncertainty for businesses.

That said, the law is the law. Despite our overarching reservations, the Bureau’s
consultation process is underway. Accordingly, our official submission (see “Appendix”
attached to this letter) outlines our macro concerns with the legislation and provides
comments for the Bureau’s consideration within its public consultation framework. In
addition, since some of our comments go beyond the Bureau’s consultation and mandate scope, we have copied all relevant ministries, officials, and parliamentarians on this note.
None of this should be construed as support for the new provisions of the Act.

In our view, it is outside of the Bureau’s core competency to be the arbiter of the
appropriate “internationally recognized methodologies” that should apply to any specific
environmental representation. As such, we believe that the Bureau should provide a
framework for “adequate and proper” substantiation of “internationally recognized
methodologies” where existing federal and provincial rules and requirements, as well as
ongoing efforts to release new standards such as those produced by securities regulators
and groups like the Canadian Sustainability Standards Board (CSSB) and the Canadian
Standards Association Group (CSA), are deemed to be in full compliance with enforcement
under the new provisions of the Act, and are, in fact, given preference over other
international methodologies.

 That said, our chief recommendation, superseding any technical guidance we provide to the
Bureau in this consultation process, is that crafting the Bureau’s framework should be
methodical, involve meaningful and iterative consultation with industry, and provide
businesses adequate time to adjust to changes and to apply them to past public
communications as necessary. As such, enforcement should not occur until all the following
consultative steps take place:

• The Bureau, after consulting with Canadian securities regulators and standard-setting bodies like the CSA and others, develops a framework for “internationally recognized methodologies” that recognizes current Canadian standards that businesses are using for securities compliance and regulatory reporting;
  
• Meaningful engagement with industry is conducted prior to the publication of this draft guidance;
  
• Draft guidance is provided to businesses on how to comply with the new amendments to the Act and how the amendments will be implemented and adjudicated;
  
• Industry is provided another period of feedback on this draft guidance;
  
• Amendments are made to the guidance in consideration of industry feedback; and
  
• A 6–12-month period is given for companies to amend their work/material in response to the final guidance.

As a final note, even if these steps are taken, they would still not eliminate the uncertainty
businesses now face. The impacts of these provisions may not become fully clear until
they’ve been tested by the Competition Tribunal (“the Tribunal”). This process could take
years and does not help businesses communicate about their environmental performance
in the interim, nor does it provide comfort that, even with more robust guidance, this law will
be interpreted such that businesses’ concerns are reflected.

Thank you for the opportunity to provide input in this process. We would welcome the
opportunity to meet and discuss the material in this submission.

Sincerely,

Adam Legge
President