Bill C-59: Anti-greenwashing guidance

In 2025, Canada saw notable developments in anti-greenwashing regulation, public awareness and scrutiny. Nearly a year after Bill C-59 received royal assent, Canada's Competition Bureau (the "Bureau") issued its final guidelines ("final guidelines") regarding environmental claims on June 5, 2025 after two rounds of public consultation.¹

On June 20, 2025, the expanded private right of access under Canada's Competition Act (the "Act") came into force and on the same day, the bureau released a revised information bulletin setting out its perspective on private access to the Competition Tribunal (the "Tribunal").²

Over the past year, KPMG's ESG Law team has carefully followed the evolution of the anti-greenwashing regime in Canada.

In this article, we discuss the following topics:

• Key observations, updates and clarifications in the Bureau's final guidelines relating to environmental claims
• Key observations from the bureau's revised information bulletin on the expanded private access to the Competition Tribunal, including resulting risks and impacts that industries across Canada face

The Competition Bureau's final guidelines regarding the anti-greenwashing provisions of the Act were published following two rounds of consultation, with the second consultation closing on February 28, 2025. The Bureau solicited feedback from all interested parties, and received over 400 submissions from both consultations, incorporating much (but not all) of the feedback.

Key updates and clarifications in the final guidelines include:

• The term "business activity" includes fundraising for charitable and non-profit purposes. This change has already resulted in a request for the Bureau to investigate a non-profit organization
• The term "recognized" is defined to mean methodologies acknowledged as valid by credible sources, including standard-setting bodies, regulatory authorities, or even industries or entities using methodologies that are commonly accepted internationally
• Removal of language that suggested the provisions do not apply to "claims more broadly". This language previously followed a statement that the provisions deal exclusively with environmental claims
• New examples of what the Competition Bureau considers to be properly substantiated environmental claims using internationally recognized methodologies ("IRMs")
• Revision of a statement in the prior draft guideline that environmental claims "must be true" to now state that environmental claims must not be "materially false or misleading"
• Clarity that due diligence can protect against penalties and corrective notices but not cease orders
• Confirmation that the competition Bureau does not regulate environmental claims made solely for current and potential investors of securities, unless such claims are "reused" for general promotion outside of the sale of securities
• Confirmation that the provisions apply to foreign businesses marketing in Canada
• Clarity that claims about the percentage of recycled content in a product may not fall under s. 74.01(1)(b), (b.1), or (b.2), and therefore would not require testing
• Confirmation that that methodologies recommended or required by Canadian federal, provincial or territorial government programs will generally be treated as consistent with IRMs, provided the chosen methodology is adequate and proper
• Clarity that if no single methodology for substantiation exists, two or more IRMs might be relied on together to create substantiation.

While the final guidelines provide clarity in several areas outlined above, uncertainty remains surrounding key concepts and definitions, enforcement criteria and timelines. For example,

• Broadened application to include environmental non-governmental organizations (ENGOs): The application of the deceptive marketing provisions to non-profit organizations has already resulted in a private access request for the Bureau to investigate an ENGO's use of allegedly misleading imagery in relation to oil and gas development in British Columbia.³ How the Bureau interprets and applies the new provisions in such complaints or cases will have important implications for how non-profits communicate their purpose and campaigns
• Broadened application to claims: The final guidelines suggest that the anti-greenwashing provisions apply to claims more broadly and could cover a wider range of environmental statements. Therefore, it is important to consider claims made about sustainability-related topics, performance, and commitments even though specific environmental terms may not be included
• Clarified application to securities disclosures: Although the final guidelines suggest that the Act does not apply to environmental claims made solely for current and potential investors of securities, the Act could apply if such claims are "reused" for general promotional purposes. This highlights the importance of assessing claims made in continuous disclosure filings under securities laws that may receive increased attention from investors, activists, and regulators as a result of the new anti-greenwashing regime.

With the private access right under Bill C-59 coming into force in Canada, any individual or organization may now file a greenwashing complaint with the Tribunal, and such claims will proceed if deemed to be in the public interest.

Below are key observations in the Bureau's information bulletin on private access to the Tribunal:

• Remedies: The Tribunal can only order that the alleged greenwashing be stopped, the payment of a monetary penalty to the government, and/or the publication of a corrective notice. Payment of monies to other parties (e.g. complainants) is not available as a remedy under C-59's anti-greenwashing provisions.
• Only one investigation/inquiry: The Tribunal will not hear private applications if a formal Bureau investigation is already underway, or if an inquiry was discontinued because of prior settlement. Similarly, if a private party makes an application to the Tribunal, this can prevent the Bureau from making its own application on the same matter
• Competition Bureau initiated inquiries and applications: If there's an ongoing Bureau investigation already underway and a private application is filed, the Bureau may advance the investigation to formal inquiry. In rare cases, the Bureau may file their own application dealing with the conduct described in a private application. This could occur if the Bureau believes: (i) the conduct would be better handled through its own enforcement, (ii) where the private party has cast their case too narrowly, (iii) the matter would be better addressed through a section of the Act where private access is not available, or (iv) where a private party has received leave but has not made a private application within a reasonable timeframe.
• Public interest: In deciding whether to grant leave, consideration may be given to the potential impact on consumers, the business community, or the Canadian economy as well as potential legal impact on important issues or relevant cases. The Bureau may also make submissions to the Tribunal recommending whether to grant leave
• Consultation on the private access right is open: The public consultation is open until August 19, 2025 (11:59 p.m. Pacific time) submissions will be published on the Bureau's website unless confidentiality is requested. Submissions can be made to: cb.PAconsultation-bc.consultationPA@cb-bc.gc.ca

The scope and magnitude of the new measures under the Act and the renewed public attention on greenwashing claims means that companies must remain vigilant in their internal processes and external communications. As the private right of access is now in force, and as a result of the corresponding legal risk this presents, many organizations are seeking to identify trends or leading indicators of private access applications.

Many companies have mature monitoring programs to track regulatory and litigation trends and developments as well as public sentiment and media coverage. Without insight into these important risk indicators, organizations increase their exposure to costly investigations and enforcement actions, jeopardizing both financial standing and reputation, and also result in criminal liability. Given the potential risks, it is crucial that companies update their internal processes and ensure that their public reporting undergoes regular legal review on an annual basis.