Caution must be taken when making environmental claims or complaining about possible false or misleading environmental claims. Recently, Greenpeace Canada (Greenpeace) announced that the Canadian Competition Bureau (Competition Bureau) has launched an inquiry into Greenpeace’s allegations that Pathways Alliance, made up of Canada’s six largest oil sand producers, made false or misleading environmental representations in its media campaign. Conversely, in France, a big oil company just launched a lawsuit against Greenpeace France on the basis that it published false and misleading information regarding the oil company’s environmental impacts. These developments offer cautionary tales for companies affecting the environment and for the environmental groups that act as their watchdogs.
Canadian oil producers under the microscope
Created in 2021, Pathways Alliance is made up of the six largest Canadian oil sands producers. In their “Let’s clean the air” advertising campaign, these producers state that they are “making clear strides to net zero” and are “[h]elping Canada meet its climate goals.”
Greenpeace complained to the Bureau, alleging that Pathways Alliance’s statements are false and misleading because these producers:
- Fail to incorporate the life cycle of the product;
- Represent that they have and are following a transparent and concrete plan for reducing emissions and/or achieving net zero while they are continuing to expand production;
- Base the claims on untenable and not established assumptions about future technologies; and
- Give the impression that Pathways Alliance is a climate leader and that their actions will clear pollution when they are not taking actions that do so.
Greenpeace submitted that, should the inquiry find the allegations substantiated, then Pathways Alliance should pay a fine that is the greater of CA$10 million, or three percent of worldwide gross revenues, to be dispersed by the Environmental Damages Fund for the clean-up of oil sands pollution.
For its part, Pathways Alliance strongly disagrees with the assertions in the Greenpeace complaint.
The Bureau will be examining various representations made by the Pathways Group in a media campaign, and defines a representation as “any marketing material, including online and in-store advertisements, direct mail, social media messages, promotional emails, and endorsements, among other things.” A representation is considered material “if the general impression it conveys leads someone to take a particular course of action, like buying or using a product or service.”
This latest inquiry confirms that companies engaged in business which results in environmental impacts have to be exceedingly careful in their messaging. Earlier this year, the Competition Bureau published a news release advising Canadian consumers to “[b]e on the lookout for greenwashing.”
Environmental groups in hot water in France
The launch of the Canadian Competition Bureau’s inquiry into the Pathways Alliance comes just weeks after French oil company TotalEnergies launched an action against Greenpeace France and Factor-X, a climate consulting firm, over a report which alleged TotalEnergies had significantly underestimated its greenhouse gas emissions in 2019. In their report, Greenpeace France and Factor-X claimed that TotalEnergies disclosed emitting only 455 million tonnes of carbon dioxide, but in reality emitted approximately 1.64 billion tonnes.
In a reversal of fortunes, TotalEnergies has sued in court and is claiming that this report contains “false and misleading information.” TotalEnergies is seeking a judicial order to force Greenpeace France and Factor-X to withdraw the report, and cease any and all references to it under a penalty of €2000 (approximately CA$2918) a day in fines. They also requested a symbolic €1 in damages. The first procedural hearing is scheduled to take place in early September at a judicial court in Paris.
For more information on this topic, please reach out to Dina Awad.
Special thanks to summer law students Rachel Kuchma and Olivia Graham, who assisted in preparing this insight.
