Canada: So Who Now Has The Strictest Standards In The Land (World)?

Last Updated: December 18 2012
Article by Marketing, Advertising & Regulatory Group

It depends which issues you're looking at, but the US is the frontrunner on strictness on a number of important issues. To put matters into perspective, we highlight below some comparisons between the new US Guide, Canada's Guide, ISO 14021 and certain other guidelines, so you can get a slightly larger sense of how issues may be handled in various places.

(Obvious note: we have only focused on certain aspects of the claims referenced below, so please check with local counsel and see the relevant guidelines themselves.)

Where The US Guide Is Stricter or More Exacting in Specifics

So far as we've seen, the US Guide is the only green guide providing the following:

a. Degradable: To be called "degradable" (without qualification), products entering the solid waste stream (e.g., in contrast with liquids) must completely decompose into elements found in nature within a specified time period (one year) after customary disposal. If beyond a year, the US Guide says you should specify the rate and extent of degradation, among other things.

Having said that, Canada's Guide, ISO 14021 and others such as Finland's, focus on an aspect of degradability that the US Guide doesn't. These guides state that if a product/package/component releases substances in concentrations that are harmful to the environment when it degrades, it shouldn't be marketed as "degradable" without an appropriate qualification. With respect to liquids, Canada's Guide provides the example that a biodegradable claim for cleaners with phosphates that can promote algae growth (which can wipe out ecosystems in waters) can be deceptive. (Note that the UK's Department for Environment, Food and Rural Affairs put out specific Guidance on "Biodegradable" and other environmental claims in the Cleaning Products Sector.)

b. Recyclable: To be called "recyclable" (without qualification) under the US Guide, recycling facilities have to be available to a "substantial majority" or "60%" of the population where the product is sold. That's more than the "reasonable proportion" required under IS O 14021, which has been interpreted as at least "50%" in Canada's Guide. New Zealand uses "most", which is apparently also the position in Australia.

c. Compostable: To be called "compostable" (without qualification) under the US Guide, commercial composting facilities must be available to "60%" of the population, where the item is sold, versus "50%", "most" or a "reasonable proportion" elsewhere.

d. Renewable energy: Under the US Guide, these claims must disclose the type of renewable energy - e.g., solar, etc., as well as the percentage if it is less than all or virtually all. Other jurisdictions just require the percentage where it is less than 100%, not the type of energy.

On the other hand, the US Guide may be a little more liberal, specifically allowing a "made with renewable energy" claim when you've actually used fossil fuel energy, but purchased a renewable energy certificate to match the amount of fossil fuel used. We haven't seen that elsewhere as yet.

e. Renewable materials: With "renewable material" claims, the US Guide recommends disclosing what the material is AND explaining how it is renewable - in addition to disclosing the percentage of renewable material. (Other guidelines just require the percentage.)

This is interesting. The FTC found through consumer perception studies that consumers may understand "made with renewable materials"to mean that the product is made with recycled content, recyclable and/or biodegradable. It therefore set out sample disclosures that could head off that misunderstanding – i.e., "Our flooring is made from 100 percent bamboo, which grows at the same rate, or faster, than we use it." Or even more elaborately, "Our packaging is made from 50% plant based renewable materials. Because we turn fast-growing plants into bioplastics, only half of our product is made from petroleum-based materials."

f. Certificates and seals of approval: As consumers have come to trust companies' own claims less and less, certifications by trusted, independent parties have become increasingly important. However, these can also be confusing for consumers. Which seals and certificates are meaningful and trustworthy, which are less so, and what attributes do the trumpeted certifications cover?

The US Guide has the most detailed requirements of any guidelines we've seen on this issue, aiming to obliterate the ambiguity and deceptiveness that has had consumers throwing up their hands in confusion. Was the seal awarded by an independent, authoritative party (most trusted), a trade association (often less trusted) or the company itself (query how many of these we will even see going forward)? This is an issue that has spawned litigation as well – e.g., the class actions launched against SC Johnson in connection with its GreenlistTM logo, which was developed by the company itself.

Does the company have a material connection with the entity whose seal or certificate displayed, such that its credibility or weight might be affected? Which certifications are based on solid, consensus-based and exacting requirements as opposed to being not-so-rigorous endorsements by trade associations or others? Which environmental aspects of the product were actually evaluated and what was the specific basis for a certification? Here it also gets interesting. Anticipating the obvious question of, 'how do you explain the basis of complex, multi-attribute certifications on a little label', the FTC allows you to refer consumers to a website for the details. Don't get excited, though. Even though you can reference a website, you would still have to accompany the seal with a statement like, "Virtually all products impact the environment. For details on which attributes we evaluated, go to [a website that discusses this product.]"

The FTC has tackled all of these potential devices for ambiguity and deception - and more, it provides numerous recommendations and examples. It also spells out that, use of the name, logo or seal of approval of a third-party certifier or organization may be an endorsement, which should meet the criteria for endorsements provided in the FTC's Endorsement Guide. The name of the new game, then, is to disclose, disclose, disclose.

On this front, ISO 14021 and Canada have been left a little pale, with only a few general principles laid out, mainly under the part dealing with "symbols".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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