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German Court Finds Apple Watch Not A ‘CO2-neutral Product’

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A panel of judges of the Commerce Chamber of the Frankfurt am Main Regional Court (the Court) has released its decision barring Apple from promoting three Apple Watch models as “CO2-neutral products”. The Court granted an injunction sought by Deutsche Umwelthilfe (Environmental Action Germany), finding that advertising the watches as a “CO2-neutral product”, based in part on the purchase of carbon credits from “nature-based” projects, was misleading under German competition law. This bulletin briefly summarizes the key findings of the Court. Decision. In finding that Apple must refrain from advertising the three models of Apple Watches as a “CO2-neutral product”, the Court determined that the claims were misleading and violated s. 5(1) of the Act against Unfair Competition, which prohibits misleading business acts that are likely to induce consumers or other market participants to make a business decision that they would otherwise not have made.  Apple’s claims were based, in part, on the purchase of carbon credits from a forest project in Paraguay. However, the Court held that 75% of eucalyptus plantations in the carbon offsetting forest projects in Paraguay were only leased until 2029 and that the CO2 offsetting could therefore only be guaranteed until 2029. The Court also rejected Apple’s argument that Verra’s buffer pool account was sufficient to secure the uncertainty of lease extensions according to the VCS Standard, and noted that in the event of non-renewal of the leases, the VCS Standard only allowed Apple to continue to monitor the forest project: “The possibility of only monitoring the remote part of the project area for the remaining duration and only having the buffer account mechanism intervene in the event of loss is not a CO2 compensation measure that is equally suitable for the continuation of the forest project beyond 2029.” (translated from the original German) In finding Apple’s claims misleading to…

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I4PC Files Greenwashing Complaint with Alberta Securities Regulator

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Investors for Paris Compliance (I4PC), a shareholder advocacy organization, yesterday filed a complaint with the Alberta Securities Commission (ASC), alleging that two major energy companies have engaged in misleading disclosure regarding their net zero plans. The complaint targets Cenovus Energy and Enbridge Inc., two reporting issuers that are principally regulated in Alberta. A copy of the full complaint is available here [PDF]. The complaint is based on section 92(4.1) of the Securities Act (Alberta), which prohibits reporting issuers from making misleading or untrue statements that would reasonably be expected to have a significant effect on the market price or value of a security, as well as CSA Staff Notice 51-333 Environmental Reporting Guidance and CSA Staff Notice 51-358 Reporting of Climate Change-related Risks. The complaint also makes reference to the anti-greenwashing provisions of the Competition Act that were introduced through Bill C-59. Submissions. I4PC submits that: Cenovus and Enbridge have a “core net zero contradiction” by engaging in significant fossil fuel expansion while claiming alignment with net zero; Cenovus and Enbridge have consistently failed to meet core transition metrics on net zero, particularly around capital expenditures; Cenovus and Enbridge have consistently engaged in “overly promotional disclosure regarding net zero”, both directly and via associations; and Cenovus has been allowed to foster investor uncertainty with lack of clarity regarding its net zero commitment (which I4PC expressly ties to Cenovus’ withdrawal of net-zero disclosures prompted by Bill C-59). Remedies Sought. I4PC requests that the ASC grant the following remedies:  An investigation be launched into existing and past climate disclosures of Cenovus and Enbridge to assess the accuracy and adequacy of their disclosures. Because the practices of Cenovus and Enbridge are repeated by other Alberta-registered oil and gas companies, that the investigation also consider evidence from peers and competitors. That overly promotional disclosure in relation to net…

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Competition Bureau Releases Final Guidelines on “Greenwashing” Provisions

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Canada’s Competition Bureau today released its final guidelines (PDF) on environmental claims (the Guidelines). The Guidelines follow new greenwashing provisions added to the Competition Act (the Act) through a series of Bill C-59 amendments that became law on June 20, 2024 and two rounds of public consultations conducted over the past year, which resulted in more than 400 submissions. The Competition Bureau also published a backgrounder on the Guidelines.  The Guidelines provide a summary of the civil provisions of the Act that are relevant to environmental claims, including those provisions that deal with: False or misleading representations; Product performance claims; Claims about the environmental benefits of a product; and Claims about the environmental benefits of a business or business activity. The Guidelines then set out a series of six principles for compliance. The principles first appeared in Volume 7 of the Deceptive Marketing Practices Digest and are re-introduced with modifications to reflect the new provisions of the Act: Environmental claims should be truthful, and not false or misleading. Environmental benefits of a product and performance claims should be adequately and properly tested. Comparative environmental claims should be specific about what is being compared. Environmental claims should avoid exaggeration. Environmental claims should be clear and specific – not vague. Environmental claims about the future should be supported by substantiation and a clear plan. The Guidelines are expected to inform how the Competition Bureau exercises its enforcement discretion with respect to environmental claims. Private parties are also able to seek permission to file an application against businesses under the deceptive marketing practices provisions of the Act beginning on June 20, 2025. The Competition Bureau has indicated that it expects to publish updated general guidance with respect to private access to the Competition Tribunal.    For further information or to discuss the contents of this bulletin, please contact Lisa…

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Canada’s Competition Bureau Releases Digest on Greenwashing Provisions

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Canada’s Competition Bureau (the Bureau) today released a new edition of the Deceptive Marketing Practices Digest (the Digest) that addresses environmental claims. The new edition aims to provide the Bureau’s general perspective on environmental claims and offers a foundation to understand the issues around environmental claims in general and how businesses can comply with the provisions of the Competition Act already in place prior to the new greenwashing provisions of the Competition Act, which were implemented on June 20, 2024 (see our earlier bulletin here). The Bureau also launched a public consultation to gather input from Canadians on specific questions related to the new amendments in advance of new guidance. Feedback is due by September 27, 2024. This bulletin briefly summarizes the key points arising out of the Digest: Environmental claims. The Bureau’s perspective is that an environmental claim is any representation related to the environment that has been made for the purposes of promoting a product or business interest. Environmental claims can be about physical products as well as services, processes, and business practices. Greenwashing. Greenwashing means, in the context of the Bureau’s work, environmental claims that are deceptive because they are false, misleading, or not adequately and properly tested or substantiated. The Bureau has historically received complaints about greenwashing in a number of categories: Composition claims (i.e., what is in a product or its packaging); Claims about the production process of products; Claims about the disposal of products after use; Comparison claims; Vague claims; and Claims about the future (e.g., carbon neutrality by a certain date; investments in environmental projects, etc.). Tips for businesses. The Bureau outlines the following tips for businesses considering making environmental claims: Be truthful, and not false or misleading. Ensure claims are properly and adequately tested. Comparative claims; be specific about what is being compared. Avoid exaggeration.  Avoid vague environmental claims in favour of clear and specific ones.…

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Climate-related Amendments to the Competition Act Become Law as Bill C-59 Receives Royal Assent

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The Fall Economic Statement Implementation Act, 2023 (Bill C-59) yesterday received royal assent, implementing (1) key climate-related “truth-in-advertising” amendments to the Competition Act and (2) two important investment tax credits (ITCs) for clean technology and carbon capture utilization and storage. Omnibus Bill C-59 was introduced in the House of Commons in November 2023 (and amended several times since then) to implement certain provisions of the Fall Economic Statement (FES) tabled in Parliament in November 2023 (see our earlier bulletin here) and certain provisions of the budget tabled in March 2023 (Budget 2023) (see our earlier bulletin here). This bulletin summarizes the climate-related amendments to the Competition Act. A subsequent bulletin will cover the ITCs. Deceptive marketing practices. Part VII.1 of the Competition Act sets out a number of deceptive marketing practices that are considered “reviewable conduct” under the legislation, and therefore subject to scrutiny by the Competition Tribunal and the courts and related administrative remedies. For example, section 74.01(1)(a) contains a general prohibition on representations to the public that are materially false or misleading, and made for the purpose of promoting the supply or use of a product or a business interest (directly or indirectly). Where the Competition Tribunal or a court determines that a corporation is engaging (or has engaged) in reviewable conduct, it may order the corporation: not to engage in the conduct or substantially similar reviewable conduct; to publish a notice providing a description of the reviewable conduct and related details; and to pay an administrative monetary penalty in an amount not exceeding the greater of $10M (and, for each subsequent order, $15M) and three times the value of the benefit derived from the deceptive conduct (or 3% of the corporation’s annual worldwide gross revenues, if such an amount cannot be reasonably determined). Bill C-59 amendments. The…

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