Law Times

www.lawtimesnews.com Page 4 February 11/18, 2008 / Law Times Ensure accuracy of 'environmentally friendly' claims C ompanies eager to cash in on the environmentally friendly product band- wagon need to take a step back and consider the accuracy of their marketing claims to avoid regula- tory punishment, says a top mar- keting and advertising lawyer. "Environmental claims have been popping into the market for many years," says Heenan Blaikie LLP lawyer Catherine Bate, who spoke to business lawyers last week at the Ontario Bar Association In- stitute continuing legal education conference. "Those claims are now expanding into all different types of areas." Bate says environmentally friendly marketing claims first ar- rived in the 1980s when compost- ing and recycling became concerns for consumers. With the current public interest in environmental issues, companies have started making claims, for example, that their products are carbon neutral, free of potential hazards such as phosphate, use smaller packaging, or are made from concentrate. "All of those fall into the ru- bric of environmental claims," says Bate. "Really, across the board, everything from toilet paper to household cleansers to automobiles." Bate notes that companies need to be mindful of the Competition Act when making such claims. She says declarations of environmen- tal friendliness must be true, not misleading, which "can be a more complicated question in terms of what consumers would anticipate the claim to actually mean. "Saying a product is recyclable when in fact only limited facili- ties exist . . . maybe technically it's true that it is recyclable, but if you can only recycle it in five major centres in Canada, that makes it misleading to have on the packaging to be distributed across the country," says Bate. She says the government also is considering compelling com- panies to give consumers more disclosure on packaging regarding where products can be recycled. Manufacturers could find it dif- ficult to fit that information on smaller packages, she says. The Competition Bureau is in the process of drafting a new best practices guide to assist companies making environmental claims. A draft was sent out for consultation last year, and a final document is expected in the spring. "This is a relatively new phe- nomenon that we're seeing more of in the media and the general public," Competition Bureau spokeswoman Pamela Wong tells Law Times, regarding environ- mental claims by marketers. She says the bureau has worked on these types of matters twice recently. In one incident, Lulu- lemon Athletica Inc. was forced to remove claims alleging the thera- peutic benefit of a line of products due to seaweed content. "The bureau is watchful of in- creasing trends in the marketplace making claims about the use of sustainable fibres (e.g. bamboo, soybeans) and any related envi- ronmental, health, and theraputic claims about their benefits, and reminds industry participants that they must ensure that proper fibre content is being disclosed," the bureau said in a November 2007 press release. "Scientific testing of the fibre or fabrics is necessary to substantiate the claims." The bureau also issued a warn- ing last year following an inves- tigation of ultraviolet protective clothing, which showed that some garments didn't live up to "stated levels of protection." Bate says previous attempts by the bureau to create industry guidelines were largely dismissed. "It was too complicated in terms of how they were trying to structure the guidelines," she says. "They weren't user friendly; very difficult document to get though." The bureau has worked with the Canadian Standards Asso- ciation on the new round of best practices. The guide aims to help industry and advertisers follow the Competition Act, Consumer Packaging and Labelling Act, and the Textile Labelling Act. Bate says lawyers working in the area of marketing and ad- vertising need to let their clients know that the new guidelines are on the horizon. "They want to work with their clients to ensure they have the proper substantiation for the claims they want to make. So do they have the proof to back up how 'friendly' their product truly is?" says Bate. "There's certainly fantastic benefits to all of these products, but we'll see an increase in the Competition Bureau and other authorities wanting to take manu- facturers to task. We'll also see, I think, competitors within the marketplace wanting to take each other to task if they overspeak the true benefits of their product in environmental causes." NEWS "Skurka is in a unique position to best describe not just what happened during the Conrad Black trial, but also why it happened." — Eddie Greenspan TILTED T h e Tr i a l o f Conrad Black by Steven Skurka Brings the trial to life and offers analysis, insights, and personal anecdotes to present the clearest picture of the trial to date. Skurka is the legal analyst for CTV News, and covered the trial for the network. He is also a law partner with Skurka Spina Cugliari LLP in Toronto, and a certied specialist in criminal litigation. "During the trial, it was evident that Steve knew exactly what our position was — so much so, that he would say things in his articles that we had said in private meetings the evening before!" — Patricia Holmes, lawyer for Mark Kipnis Tilted_LawTimes_ad.indd 1 1/10/08 3:23:49 PM BY ROBERT TODD Law Times Catherine Bate says declara- tions regarding environmental friendliness must be true. LT *Pages 1-16.indd 4 7/18/08 12:45:23 PM

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