North America

Horizontal Agreements in the Environmental Context: In 2020, the OECD issued a paper that discusses whether competition policy should be influenced by sustainability. The 2020 paper follows the OECD's 2010 paper, which considers, from national perspectives, the interaction between horizontal agreements with environmental goals and competition law policies.

The 2020 paper also analyses the substantive application of competition law to sustainability issues by exploring the extent to which competition law can be interpreted in a way that fosters or limits sustainability initiatives. In addition, Australia and New Zealand, Germany, Greece, Lithuania and the Netherlands have submitted contributions to this discussion. The OECD's 2020 paper provides a thorough introduction to the state of play of sustainability in the context of competition law. It encourages agencies to be clear about their objectives and priorities in order to provide clarity on how sustainability fits into competition law, with formal and informal guidance emphasised. It also examines approval procedures, sandboxing, admissible evidence, capacity, fining, and international co-operation as possible measures to further sustainable goals. In December 2021, the OECD roundtable assessed these issues again and published a follow-up paper specifically on environmental considerations in competition enforcement. Additionally, the 2022 OECD Competition Open Day addressed, inter alia, Green Innovation. In December 2022, OECD Global Forum on Competition will discuss the goals of competition policy including the question on whether "competition law and policy needs to adapt as a policy instrument to better accommodate socio-economic trends such as the rising importance of sustainability".

Merger and Antitrust Rules: Currently, under the Competition Act and the accompanying guidance in Canada, public policy considerations, including environmental objectives, are distinct from pure competition considerations and are, as such, beyond the powers granted to the Canadian Competition Bureau ("CCB").

In Tervita, the Supreme Court of Canada affirmed that when weighing an efficiencies defence, environmental effects may be considered to the extent that there are related quantifiable economic effects. However, the efficiencies defence was repealed in December 2023, rendering the Tervita decision less relevant to future merger challenges. It remains to be seen to what extent efficiencies will be considered by the CCB and Competition Tribunal in merger review moving forward.

Other cases focus on greenwashing, whereby misleading environmental marketing claims have been deemed to fall foul of the Competition Act. For example, in January 2022, Keurig Canada agreed to pay a C$3 million penalty, donate C$800,000 to a Canadian charitable organisation and pay C$500,000 in costs following the CCB’s investigation into its misleading environmental claims about the recyclability of its single-use coffee pods.

Change on the horizon? In November 2023, the Canadian government tabled amendments to the Competition Act, which – among other things – would introduce sustainability-specific provisions. In particular, the pending amendments would introduce a new civil misleading advertising provision targeting deceptive environmental claims. Where a representation to the public about (i) a product’s benefits in protecting the environment, or (ii) a product’s effects on mitigating environmental or ecological damage, is not based on adequate and proper testing, it could be investigated under the proposed provision. Note that such claims are currently investigated under the existing misleading advertising provisions, which require that all performance claims are based on adequate and proper testing.

Compliance certificate for sustainable cooperation agreements: Once amendments are enacted, parties will be able to request a compliance certificate for their agreement aimed at protecting the environment; provided that the Commissioner of Competition is satisfied that the agreement is not likely to substantially lessen or prevent competition. The certificate would shield an agreement from actions being brought under the conspiracy, bid rigging, agreements between financial institutions and civil anti-competitive agreements provisions of the Competition Act. A certificate could be valid for no longer than ten years but could be extended for an additional period of up to ten years.

The proposed amendments are still before Canada's Parliament.

Focus on ESG at the State Level: Certain conservative state attorneys general have launched investigations of signatories to global climate initiatives, claiming that coordinated ESG efforts by banks, asset managers, and insurers are de facto anticompetitive horizontal agreements.

Multiple states have also enacted anti-ESG legislation, including laws that restrict or prohibit state entities from doing business with companies that allegedly boycott fossil fuel companies or investments, and laws that prohibit state funds from being invested in ESG.

Focus on ESG at the Federal Level: At the federal level, the Republican majority in the House of Representatives formed a "Republican ESG Working Group" to combat potential market harms arising from ESG policies.  Republicans launched an investigation into Climate Action 100+, promising to further investigate and hold hearings on the alleged anticompetitive effects of entities like financial firms and energy companies participating in global ESG initiatives. In June 2023, the Republican ESG Working Group issued an interim report, identifying climate-related financial services concerns and their priority focus areas for responding to those concerns.

Current US Agency Position: The US antitrust agencies, the Federal Trade Commission ("FTC") and the Department of Justice ("DOJ"), view current antitrust laws as providing enough flexibility to allow well-structured and pro-competitive joint action in pursuit of social welfare objectives. While the agencies have not publicly investigated ESG initiatives or brought enforcement actions relating to participating in ESG alliances, they have asserted that there is no automatic ESG exemption for conduct that violates the antitrust laws.

The FTC has continued to bring enforcement actions against companies for "greenwashing" – a company making environmentally-friendly claims about its products that the FTC contends misrepresent a company's ESG activities and/or overstate the ecological benefits of its products. Further, the US agencies have suggested that a lack of commitment to ESG policies may be a reason to challenge a proposed merger under a newly proposed holistic approach to merger review.

The Securities Exchange Commission ("SEC") has proposed rules and rule amendments that would require public companies to disclose climate-related information and that would require investment advisers and investment companies to disclose ESG factors considered by funds and advisers.

How should companies proceed?  Companies should carefully assess how they structure and describe their ESG policies, as well as whether and how they engage with third-party ESG initiatives.

White & Case Contacts:

Martin M. Toto, Partner, New York

Michael Hamburger, Partner, New York

Kristen O'Shaughnessy, Partner, New York