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 analyzes 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 emphasized. It also examines approval procedures, sandboxing, admissible evidence, capacity, fining and international cooperation 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, the 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."

In January 2023, the OECD held a high-level symposium on pro-competitive policies for a sustainable economy, during which the attendees discussed how competition policy can contribute to the objectives of economic growth and green transition.

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 has formed a "Republican ESG Working Group" to combat potential market harms arising from ESG policies. Republicans launched an investigation into Climate Action 100+, and have promised to further investigate and hold hearings on the alleged anticompetitive effects of entities like financial firms and energy companies participating in global ESG initiatives.

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 and 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.

Merger and antitrust rules: 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) under the Competition Act.

Recent cases: The most recent cases fall into two main categories. First, in Tervita, the Supreme Court of Canada affirmed that when weighing an efficiencies defense, environmental effects may be considered to the extent that there are related quantifiable economic effects. Second, other cases focused 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 CAD 3 million penalty, donate CAD 800,000 to a Canadian charitable organization and pay CAD 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: Sustainability-related objectives and considerations were not included in the government's 2023 discussion paper considering further proposed amendments to the Competition Act, nor were they raised in the CCB's suggested reforms in response to the government's call for submissions. The CCB’s submission does, however, advocate for an expansion of the deceptive marketing provisions of the Competition Act. These are the provisions used to enforce "greenwashing" claims, and amendments to these sections could therefore impact a key provision for addressing sustainability-related initiatives under the Competition Act. Further, other third-party environmental organizations have also made submissions in response to the government's discussion paper. These groups are calling for the next amendments to the Competition Act to address sustainability. It remains to be seen to what extent Canada will engage with sustainability objectives as part of its competition law policy moving forward.