Product claims relating to "environmental friendliness" are increasingly encountered in retail stores and the media. To assist industry and advertisers in complying with Canadian legislation and national/international standards, the Canadian Standards Association ("CSA") recently released the second edition of the CSA special publication Environmental Claims: A Guide for Industry and Advertisers (the "Guidelines"). Although not law, the Guidelines, developed in partnership with the Competition Bureau, will serve as a reference for the Competition Bureau to evaluate whether environmental claims are in compliance with the Competition Act, the Consumer Packaging and Labelling Act and the Textile Labelling Act. These laws prohibit the use of false or misleading representations and are administered and enforced by the Competition Bureau.
Most of the information contained in the Guidelines is used to explain the International Organization for Standardization's ISO 14021 Environmental labels and declarations — Self-declared environmental claims (Type II environmental labelling). The draft Guidelines contain a number of specific requirements for environmental claims, some of which are reproduced below along with examples from the Guidelines:
Requirement: Self-declared environmental claims, including any explanatory statement, shall be specific as to the environmental aspect or environmental improvement which is claimed.
Example: It is not sufficient to make vague claims of environmental improvement or implying environmental improvement, such as: "green", "environmentally friendly", "forest friendly", "nature's friend", "earth smart", "ozone friendly", "environmentally safe", "eco safe", etc. Any claim must detail the environmental benefit in such a way that it can be verified.
Requirement: Self-declared environmental claims, including any explanatory statement, shall be presented in a manner that clearly indicates whether the claim applies to the complete product, or only to a product component or packaging, or to an element of a service.
Example: If a box of cereal is labelled "XX% recycled package" and the package consists of a paperboard box with a wax paper bag inside holding the cereal, the claim "XX% recycled package" must apply to both the box and the bag. If the claim refers only to the box, it should be stated as such.
Requirement: Self-declared environmental claims, including any explanatory statement, shall not, either directly or by implication, suggest an environmental improvement which does not exist, nor shall it exaggerate the environmental aspect of the product to which the claim relates.
Example: A product from a company that has reduced its greenhouse gas emissions should not claim to be solving the problem of global climate change, nor should a recyclable package claim to be solving the problem of waste disposal.
Requirement: Self-declared environmental claims, including any explanatory statement, shall be presented in a manner that clearly indicates that the environmental claim and explanatory statement should be read together. The explanatory statement shall be of reasonable size and in reasonable proximity to the environmental claim it accompanies.
Example: If a carton has a claim on the front panel that requires an explanatory statement, the explanatory statement may not be on the side or back of the package, even with an asterisk to guide the reader to the other location. The statement must be with the claim.
These are just some of the claims that are considered in the Guidelines —there are many more. Industry and advertisers should carefully consider whether their current environmental claims comply with all of the requirements contained in the Guidelines. Failure to comply could be costly.
The Competition Bureau has recognized that companies may wish to reassess their advertising and labelling in light of the Guidelines, and will therefore provide a one-year transition phase to allow businesses to change their marketing practices. However, the Bureau has also indicated that during this one-year transition period it will not hesitate to pursue egregious cases of deceptive environmental claims.
The Bureau has broad enforcement powers, including the power to seek fines, orders requiring the publication of corrective notices and prohibition orders against those in violation of the legislation administered and enforced by the Bureau.
It is equally important to bear in mind that there is also other legislation in Canada — at both federal and provincial levels — that may govern or impact the making of environmental and health-related product claims. Manufacturers and advertisers must thoroughly canvass all applicable legislation before finalizing product packaging and advertising copy.1
1. See for example the recent agreement by LuluLemon Athletica Inc. in response to action by the Competition Bureau seeking removal of all claims alleging therapeutic benefits from the company's VitaSea line of clothing products.
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