Key Updates Released by Competition Bureau Regarding Greenwashing and the New Private Litigant Regime

In June 2024, the passage of Bill C-59 introduced significant amendments to the Competition Act (the “Act”),^[1]  targeting a broad array of businesses, including those in the energy, mining, oil and gas, consumer products, health, food and beverage, financial services and construction sectors. These amendments include the addition of new provisions designed to combat “greenwashing,” together with provisions directed at expanding private litigants’ access to the Competition Tribunal. The latter took effect on June 20, 2025.

The Competition Bureau has recently released revised guidance on both matters. The Bureau’s finalized guidance on environmental claims and the Competition Act builds on earlier draft guidance. The Bureau’s Bulletin on Private Access provides insight into how the novel private litigant regime is expected to unfold. In both cases, the amendments to the Act are poised to fundamentally reshape the way that anticompetitive practices are deterred and corrected in Canada, increasing the consequences for businesses, particularly in relation to greenwashing.

Final Guidelines on Environmental Claims Clarify Key Terms

As discussed in our prior bulletin, the anti-greenwashing additions to section 74.01(1) of the Act prohibit businesses from making representations about the environmental benefits of a product, business or business activity that are not based on adequate and proper testing or substantiation, as applicable.^[2] The Competition Bureau’s final guidelines on the interpretation of these new greenwashing provisions, issued on June 5, 2025, reflect revisions to the draft guidelines that clarify – and, in some cases, appear to reflect developments in – the Bureau’s position on the interpretation and application of these provisions.

“Business Activity” Includes Non-Profit Activities

The final guidelines confirm that, for the purpose of determining whether a representation is about the environmental benefits of a business or business activity, “business activity” means any activity carried on by a business, including charitable or non-profit activities. Businesses should not assume that representations about, for example, the environmental benefits of their participation in a fundraising drive are exempt from substantiation requirements merely because the activity in question is not directly profit-generating.

Marketing Representations Relevant to Environmental Concerns Won’t Always Engage the Greenwashing Provisions

The Bureau has clarified that only representations that refer to the benefits of a product, business or business activity for protecting or restoring the environment, or mitigating the environmental, social and ecological causes or effects of climate change, fall within the scope of the new greenwashing provisions.

For example, the guidelines advise that “the limited claim that a product contains ‘20% recycled content’ (without more)” is not a claim about a product’s benefits for protecting or restoring the environment or addressing climate change, and therefore would not require testing under paragraph 74.01(1)(b.1) of the Act (though the business making the claim must still ensure it complies with the Act’s prohibitions against misleading representations generally).

In discussing this example, the Bureau is careful to limit its conclusions to only the language of the claim, considered in isolation. In practice, however, it is the “general impression” conveyed by all elements of a claim, including the words, images, layout and the context in which the claim is made, that is evaluated. Accordingly, businesses should not take the Bureau’s discussion of this example as an indication that similar claims will always fall outside the scope of the greenwashing provisions.

The general impression conveyed by a claim depends on more than just the literal meaning of its words. To determine whether a claim constitutes a representation about a product’s or business’s environmental benefits, businesses should evaluate their claims holistically and ensure every possible meaning is accurate, and substantiated if it could possibly be interpreted as a “greenwashing” claim.

Clarification of What Constitutes an “Internationally Recognized Methodology”

The amendments provide that representations about the environmental benefits of a business or business activity must be based on adequate and proper substantiation in accordance with an internationally recognized methodology.

The final guidelines define “recognized” as “acknowledged as valid” and confirm that such recognition can come from a variety of sources, including standards-setting bodies, regulators, industries or other entities. The final guidelines confirm that the Bureau is likely to consider a methodology “internationally” recognized if it is recognized in two or more countries, and that it will assume that methodologies required or recommended by Canadian federal, provincial or territorial government programs are consistent with internationally recognized methodologies.

While we await further interpretation of these standards, the Bureau’s guidance provides a starting point for businesses seeking to ensure, as much as possible, that the substantiation they have in place to support environmental claims will ultimately be found to support the claims they are making.

Businesses That Exercise Due Diligence Will Not Be Subject to Administrative Penalties

The final guidelines confirm that if a business that violates the greenwashing or other deceptive marketing provisions of the Act proves it exercised due diligence to prevent the violation, the business can be ordered to cease the violating conduct, but cannot be ordered to publish a corrective notice or pay administrative monetary penalties or restitution.

A business can proactively lay the foundation for a due diligence defence in respect of its obligations under the Act by putting in place an effective and credible compliance program in accordance with the Bureau’s guidelines.^[3] At a minimum, all businesses should ensure that, prior to making any claims about the environmental benefits of their products or business, they ensure these claims are supported by appropriate testing or substantiation, as applicable, and that their efforts are carefully documented.

Provisions Expanding Private Access to the Tribunal Take Effect

The regulation of anticompetitive activity has historically been dominated by public enforcement action by the Competition Bureau in Canada, with limited exceptions. On June 20, 2025, the amendments to the Competition Act enacted by Bill C-59 came into effect, broadly expanding private litigants’ access to the Tribunal.

Expanded Access for Private Litigants

Private litigants are now able to seek leave to bring applications before the Tribunal regarding deceptive marketing practices (s.74.1) and civil competitive collaboration (s.90.1), in addition to the pre-existing private access for matters such as refusal to deal (s. 75), price maintenance (s. 76), exclusive dealing, tied selling and market restriction (s. 77) and abuse of dominance (s. 79). For businesses, this significantly increases the risk of private litigants from a variety of sectors advancing proceedings before the Competition Tribunal.

Lower Threshold for Leave  

The amendments to the Act have lowered the bar for obtaining leave to advance an application before the Competition Tribunal by permitting private litigants to obtain leave where such an application is in the public interest. In particular, leave may be granted to private litigants where it is in the public interest in relation to applications alleging deceptive marketing, refusal to deal, tiered selling and market restriction, abuse of dominance, and/or civil competitive collaboration.^[4]

With the exception of leave to bring applications alleging deceptive marketing, which will only be granted on the basis of public interest, leave to bring applications in respect of the above-noted matters will also be granted where a private party’s business is directly and substantially affected by the conduct complained of. Previously, this criterion had been interpreted to mean that a private litigant must demonstrate that the entirety of their business was affected. The amended Act now clarifies that the business need only be directly and substantially affected in “whole or in part” for leave to be granted.

While the extent to which private litigants make use of the new private litigant regime remains to be seen, the lowered bar to obtaining leave exposes businesses to a greater risk of proceedings being advanced before the Competition Tribunal, including potentially by public interest groups.

Monetary Relief

The amendments to the Act have also granted the Tribunal the power to award monetary remedies to successful private litigants.

Businesses found to have violated the Act may now be ordered to pay the applicant – and, in some cases, affected third parties – amounts up to the value of the benefit the respondent received from engaging in the prohibited conduct. Where a respondent is found to have violated the false and misleading advertising provisions of the Act, they may be ordered to, in effect, disgorge the revenues generated from the sales of the implicated products, with such amounts to be distributed to those to whom the products were sold.

Whether private litigant applications will seek relief from the Tribunal creating a quasi-class action regime, or whether these provisions will receive little uptake, remains to be seen. In the meantime, as described above, ensuring the availability of a due diligence defence is best practice for businesses.

Bureau Bulletin

The Bureau’s Bulletin on Private Access provides a high-level summary of the procedure for bringing private access applications and the Bureau’s role in the process. While the bulletin provides little guidance to businesses hoping to understand how this new regime may impact them, it does contain three comments of note:

• First, the bulletin confirms that, upon being served with an application for leave, the Bureau may decide to initiate its own inquiry into the subject matter of the complaint and advise the Tribunal that the leave application cannot proceed, or will certify to the Tribunal if the Bureau is already conducting an inquiry or has discontinued an inquiry into a matter. This should offer some reassurance that if, in the Bureau’s view, a matter is best addressed through public investigation and enforcement, it will not be prevented from doing so merely because a private litigant has initiated an application, and that separate applications will not be advanced by both the Bureau and a private litigant.
• Second, the bulletin confirms that if an application is granted leave, the Bureau reserves its right to file an intervention at any stage of the process to either support or oppose the private application. This allows the Bureau to provide insight to the Tribunal about the relevant issues and the broader context behind matters of which a private litigant may not be aware.
• Third, although the bulletin does not comment directly on how the Tribunal will assess whether to grant leave in respect of a given application would be in the “public interest,” it confirms that factors the Bureau may consider when determining if its participation in a private application would be in the public interest include: the potential legal impact of the application on legal issues relevant to other cases, together with the potential economic impact of the relevant issues on consumers, the business community and the Canadian economy more broadly. It is possible that these factors may also be among those of interest to the Tribunal in deciding whether to grant leave on a public interest basis.

The Bureau’s guidance on private access to the Tribunal is open for consultation until August 19, 2025, and submissions can be sent to cb.PAconsultation-bc.consultationPA@cb-bc.gc.ca. We expect that further guidance will likely be published at the end of the consultation period.

Conclusion

With the significant amendments to the Act introduced by Bill C-59 now in effect, the Canadian competition landscape is poised for transformation.

As businesses prepare to navigate these changes, the guidance provided by the Competition Bureau provides insight into the steps they should be taking now to ensure they are prepared to vigorously defend any enforcement proceedings brought by the Bureau or private litigants. Steps should be taken to ensure all claims are substantiated and that businesses have compliance programs in place, both to lessen the likelihood of being subject to enforcement action and to ensure that due diligence or other defences are available if such action occurs.