Research Assistant: Veck C.
The Problem
Consumers drawn to labels such as “sustainable”, “humanely raised”, and “free range” may be surprised to realize that these types of labels are often unregulated and misleading. These are examples of greenwashing and humane washing. The term “greenwashing” refers to the practice of making a misleading claim about the positive environmental impact of a company's products, services, and/or operations [1]. Similarly but less commonly known, the term “humane washing” refers to the practice of making a misleading claim about the treatment of animals or the conditions in which they are born, raised, or killed [2].
False Advertising Laws in Canada
There are two main mechanisms for consumers to combat false advertising in Canada:
the Canadian Code of Advertising Standards; and
the Competition Act.
1. The Canadian Code of Advertising Standards (“Code”)
This Code, administered by Ad Standards Canada, sets out advertising standards. The Code is not a legal statute, but rather a means of industry self-regulation with enforceable sanctions. The Code defines "advertising" as any message communicated to Canadians with the intent to influence their choice, opinion or behaviour [3]. Under the Code, advertisements must be “accurate and clear" [4]. This means, among other things, that an advertisement must not contain inaccurate representations or omit relevant information; must be supported by competent and reliable evidence, and; must contain all pertinent details [5].
2. The Competition Act (“Act”)
This Act, administered by the Competition Bureau of Canada (“Bureau”), is a federal law governing most business conduct in Canada and includes provisions addressing false or misleading representations and deceptive marketing practices [6]. Specifically, the Act defines misrepresentations to the public as any representation that is “false or misleading in a material respect” or “is not based on an adequate and proper test” [7]. Notably, when determining whether a representation is false or misleading, the Bureau considers the “general impression” it conveys, as well as its literal meaning [8].
Trends in Litigation
Humane washing cases are relatively new in Canada and, unfortunately, these kinds of cases have not often been successful. However, false advertising cases against food producers have seen success on other grounds, such as misleading health-related claims and greenwashing attempts.
For example:
1. Health-related claims:
In 2019, Dairy Farmers of Canada was forced to remove misleading transit ads claiming that milk has no growth hormones, when in fact all cow's milk contains naturally occurring growth hormones [9]; and
In 2022, Manitoba Pork was required to take corrective action after falsely claiming that pork is "healthy" in a series of radio ads [10].
2. Greenwashing:
In 2020, McDonald's was required to pull billboard ads falsely claiming their beef is "sustainable" after Animal Justice filed a complaint with the Bureau alleging that these claims were scientifically indefensible [11];
In 2022, EcoJustice’s complaint to the Bureau revealed that Keurig Canada falsely claimed that their single-use pods were recyclable [13].
The penalties for false advertising vary from case to case, but often include removing the false advertisement and monetary penalties. For example, in the McDonald’s case listed above, after the Competition Bureau opened an inquiry and investigated the complaint, McDonald's pulled the ad in voluntary compliance with the laws [14]. In the Keurig case listed above, Keurig Canada was ordered to pay a $3 million fine and provide a $800,000 donation to an environmental charity for falsely claiming their single-use pods were recyclable [15].
What You (Consumers) Can Do
Consumers concerned about greenwashing and humane washing tactics can help tackle the problem in their personal capacity. At AEL, we suggest consumers:
Document advertisements that you believe may be an example of humane washing or greenwashing;
Fact check your instincts of potential false advertisements and consider filing a complaint with Ad Standards or the Competition Bureau;
Where possible, link animal welfare/humane washing concerns with environmental concerns to bolster the complaint in the eyes of the adjudicator; and
Be mindful of the risks of false advertising when shopping and make informed consumer decisions.
For more information, or assistance filing a greenwashing or humane washing complaint, contact AEL Advocacy at admin@aeladvocacy.ca
[1] Sean Kerner, “What is greenwashing?”, TechTarget, (September 2022), online: <https://www.techtarget.com/whatis/definition/greenwashing#:~:text=Greenwashing%20is%20a%20term%20used,service%20has%20on%20the%20environment.>.
[2] “How False Advertising Lawsuits Help Animals”, Animal Legal Defence Fund, online: <https://aldf.org/article/how-false-advertising-lawsuits-help-animals/#:~:text=%E2%80%9CHumane%20washing%E2%80%9D%20is%20the%20practice,born%2C%20raised%2C%20or%20killed>.
[3] Canadian Code of Advertising Standards, Ad Standards, online: <https://adstandards.ca/code/the-code-online/>.
[4] Ibid at s 1.
[5] Ibid.
[6] Competition Act, 1985, RSC c C-34) at part VII.
[7] Ibid at s 74.01.
[8] Ibid at s 52(4).
[9] Maria Chiorando, “Canadian Dairy Farmers Forced To Remove Lying Adverts Claiming Milk Contains No Growth Hormones”, PlantBased News (27 Februrary, 2019), online: <https://plantbasednews.org/culture/canadian-dairy-farmers-remove-lying-adverts-milk-no-growth-hormones/>.
[10] Camille Labchuk, “Pork Can’t Be Marketed as “Healthy”, Says CFIA”, Animal Justice, (13 July 2022), online: <https://animaljustice.ca/blog/pork-cant-be-marketed-as-healthy>.
[11] Scott Tinney, “Victory! Animal Justice Complaint Prompts Federal Action to Stop Misleading McDonald’s Ad Campaign”, Scott Tinney, (9 August 2021), online: <https://animaljustice.ca/blog/victory-animal-justice-complaint-prompts-federal-action-to-stop-misleading-mcdonalds-ad-campaign>.
[12] “Brief Your CEO: How False ‘Green’ Marketing Claims Can Lead to Liability for Officers & Directors”, OHSInsider, online: <https://ohsinsider.com/brief-your-ceo-how-false-green-marketing-claims-can-lead-to-liability-for-officers-directors/>.
[13] Bronwyn Roe and Zoryana Cherwick, “Keurig’s $3 million fine highlights the pervasive issue of greenwashing”, EcoJustice, (14 January 2022), online: <https://ecojustice.ca/keurigs-3-million-fine-highlights-the-pervasive-issue-of-greenwashing/>.
[14] Camille Labchuk, supra note 8.
[15] Bronwyn Roe and Zoryana Cherwick, supra note 11.