Global antitrust sustainability heatmap

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".

General Position of the Canadian Competition Bureau ("CCB"): The CCB has signalled that "greenwashing" is a top enforcement priority. Now armed with a codified statute that prescribes specific infringements for greenwashing and reverses the onus on defendants to substantiate their claims, we can expect these developments to drive the CCB towards further enforcement in 2025 and companies should prepare for stricter scrutiny of their environmental marketing claims.

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 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 ("Tribunal") in merger review moving forward. 

Greenwashing-related enforcement: The CCB has powers to investigate misleading advertising and deceptive marketing practices. 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. Amendments to the Competition Act which took effect in June 2024 explicitly prohibit deceptive environmental claims. These amendments also imposed a duty on businesses to substantiate environmental claims about a business or product in accordance with "internationally recognized methodologies", which was subsequently repealed in March 2026. Nonetheless, the June 2024 changes, coupled with the amendments passed in June 2022 which introduced significantly larger administrative monetary penalties (up to three times the value of the benefit derived from the deception or, if this cannot be reasonably determined, up to 3% of a company's annual worldwide gross revenues), create enhanced risks for businesses

Change on the horizon? The Competition Act was amended in June 2024 to permit private parties – not just the CCB – to bring actions directly to the Tribunal from June 2025 onwards. Litigants needed to obtain leave from the Tribunal to bring a case, requiring that the Tribunal is satisfied that an application is "in the public interest". Until these amendments, the CCB was the gatekeeper for greenwashing enforcement in Canada. Amendments in March 2026 established an exception to the foregoing – private parties cannot bring an action regarding misleading representations to the public with respect to environmental benefits of a business or business activity under subsection 74.01(b.2). This right remains exclusively with the CCB. In addition, the CCB is statutorily bound to commence an inquiry on receipt of "six-resident complaints", a mechanism whereby six residents of Canada can file a complaint to compel the CCB to begin an inquiry. This mechanism has been used by environmental and social justice groups, and several ongoing greenwashing investigations in the retail, banking, energy and forestry industries that were commenced via a six-resident complaint.

Compliance certificate for sustainable cooperation agreements: Parties can now request a compliance certificate for sustainable cooperation agreements, 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. 

Current US Agency Position: President Trump has been vocal in his criticism about environmental initiatives, and under his administration, the Federal Trade Commission ("FTC") and the Department of Justice ("DOJ"), are expected to follow his lead in bringing additional scrutiny to climate initiatives. During the Biden Administration, the agencies took the position that ESG goals do not exempt conduct from antitrust scrutiny, with former FTC Chair Lina Khan, opining that "ESG won't stop the FTC". The new FTC Chair under the Trump Administration, Andrew Ferguson, has indicated there is a potential for the FTC to affirmatively investigate climate initiatives, opining that collusion amongst asset managers affecting gas prices was "exactly the sort of thing that should attract agency attention". 

In his second term, President Trump signed two executive orders that direct federal agencies to investigate ESG-related activities. In August 2025, President Trump directed federal banking regulators to stop using criteria in banking requirements that may disadvantage companies opposed to ESG initiatives. In December 2025, President Trump directed the federal agencies to consider: (1) federal action against companies facing state antitrust litigation over their ESG activities, (2) new rules governing ESG related shareholder activities, and (3) new duties on proxy advisors that would preclude them from incorporating ESG-considerations into their advice.

Under the Biden Administration, the Securities Exchange Commission ("SEC") implemented final rules in March 2024, which would require public companies to disclose extensive climate-related information in their SEC filings. The rules were immediately challenged in court, and the SEC stayed its enforcement of the rules pending judicial review. In June 2026, under the Trump Administration, the SEC published a formal proposal to rescind the rules.  

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. Post-election, in November 2024, several state attorneys general sued asset managers alleging they used their stock holdings in various coal companies to reduce output, thereby constricting supply and leading to higher energy prices. Those attorneys general have expanded their enforcement actions to state claims of deceptive business practices, alleging that proxy advisor firms have misled their shareholder clients by incorporating ESG-related considerations into their advice without disclosing the degree to which those considerations may harm financial returns.

Multiple states have 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. Conversely, other states have enacted pro-ESG legislation that encourage or require state entities to reduce investment of state funds in certain industries promoting fossil fuels.  

Focus on ESG at the Federal Level: At the federal level, the Republican-controlled Congress continues to focus on the competitive impact of climate initiatives. Republicans in the House of Representatives formed a "Republican ESG Working Group" aimed at combatting potential market harms arising from ESG policies, and issued an interim report in June 2023 identifying climate-related financial services concerns and their priority focus areas for responding to those concerns. The House Judiciary Committee subsequently issued subpoenas and letters to hundreds of companies, seeking information regarding their involvement in Climate Action 100+ and similar initiatives, and the Committee published an interim report in June 2024 describing its findings that activists and financial institutions participated in a "climate cartel" to force companies to reduce emissions. The Judiciary Committee has continued to actively investigate companies for antitrust violations, but has also recently begun to broaden its investigations of ESG-related misconduct. For example, the Committee has launched an investigation of alleged attempts to improperly influence judges by educating them on climate issues.

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