The US has now come on board with most other guidelines in
requiring you to consider whether an improvement you've made on
one environmental front (e.g., reducing the amount of
petroleum-based plastic you use) has worsened other environmental
impacts your product has. Let's not paraphrase this important
wording, which is: "If a qualified general claim conveys
that a product is more environmentally beneficial overall because
of the particular touted benefit(s), marketers should analyze
trade-offs resulting from the benefit(s) to determine if they can
substantiate this claim." (US Guide, §260.4(c);
emphasis is ours.)
Canada's Guide provides, among other related principles,
that, "It is not permissible to shift the environmental
burden from one stage of a product's life to another and then
make a claim concerning the improved stage without considering
whether there is, in fact, a net overall environmental
benefit." (Emphasis is ours.) It also incorporates the
ISO 14021 provision saying that claims must not only be true for
the finished product, but must also consider all relevant aspects
of the life cycle, "to identify the potential for one
impact to be increased in the process of decreasing
Trade-offs...shifts of environmental burden...increasing one
impact while decreasing another – what they are asking is
whether the change you're touting really yields a net
environmental benefit or whether your product is now LESS
And by the way, your general claim may still be sunk if
misleading in the larger picture
In most places, even if the specific change you've made
hasn't resulted in any particular environmental downsides
itself, you could still get into trouble saying,
"Eco-friendly: 30% less plastic". When? Say the
materials you use – and have always used – are sourced
from incredibly polluting plants and shipped from overseas when
everyone else sources them locally, you pillage local water
supplies that are scarce, and commit all sorts of other
environmental sins. In that scenario, do you think that giving a
specific attribute (30% less plastic) to explain your general
"ecofriendly" claim will save your general claim from
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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In Crombie Property Holdings Limited v McColl-Frontenac Inc. (Texaco Canada Limited), 2017 ONCA 15 (Crombie v McColl ), the Ontario Court of Appeal released an important decision regarding environmental due diligence in a real estate transaction, . . .
Last August, we reported on recent case law dealing with the difficult question of how to determine limitation periods in environmental claims. In the January 2017 Court of Appeal decision of Crombie Property Holdings Limited v. McColl-Frontenac Inc., the court overturned the trial court's decision that the case was started too late on the basis of "palpable and overriding errors".
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