How to avoid greenwashing with ASIC deputy chair

Greenwashing is simply misleading and deceptive conduct by another name, writes ASIC deputy chair Sarah Court FAICD. 

ASIC is deeply committed to protecting Australians from financial harm, acting on and deterring misconduct, and upholding the integrity of Australia’s financial system. To support this commitment, last year I announced ASIC’s 2023 enforcement priorities. Following an influx of sustainability-related products into the market as entities launched “green” products to satisfy consumer appetite, our enforcement priorities included a focus on greenwashing.

ASIC action on greenwashing

Our enforcement actions in response to concerns of greenwashing misconduct range from warning letters, infringement notices and undertakings to civil penalty proceedings in the Federal Court. We generally select enforcement matters likely to have a broad reach, so they have a deterrent effect beyond the issue we are prosecuting and send a compliance message to the sector.

Greenwashing matters we are currently progressing all broadly allege misleading and deceptive conduct. This law is not new. What is new is the attention from regulators — including ASIC and the ACCC. When you are promoting a financial product or service it has always been important to be able to verify statements you make.

Our first Federal Court action alleging greenwashing conduct was launched in February this year with civil penalty proceedings against Mercer Superannuation (Australia) Ltd for allegedly making misleading statements about the sustainable nature and characteristics of some of its Sustainable Plus investment options. 

This was followed by proceedings against Vanguard Investments Australia in July. We alleged misleading conduct in relation to claims about certain ESG exclusionary screens that were applied to investments in a Vanguard fund.

In August, we lodged proceedings against LGSS Pty Ltd (Active Super), alleging ESG misrepresentations were made on Active Super’s website and disclosure documents, plus its Facebook, Instagram and LinkedIn pages.

Looking ahead

Future cases may move beyond misleading and deceptive conduct to licence obligations, D&O duties and a range of other obligations. Future areas of interest are likely to include:

• Net zero statements and targets
• Use of terms such as “carbon neutral”, “clean” or “green”
• The scope and application of investment exclusions and screens.

How to avoid misleading statements

We understand many entities are taking genuine steps to work towards net zero or carbon neutral positions. Where public statements are made that assert aspirational environmental positions with a sound basis and supported by business plans and investments to substantiate these goals, ASIC is unlikely to have concerns. However, where these statements are made in marketing campaigns designed to encourage investment or promote products to consumers, with little of substance to back up those assertions or to substantiate how the transition will be achieved, ASIC is likely to have further questions, which may include requests for information and substantiation as to how and when public environmental positions are proposed to be achieved.

We aim to assist industry and have published guidance on how to avoid greenwashing (INFO 271) (https://asic.gov.au/regulatory-resources/financial-services/how-to-avoid-greenwashing-when-offering-or-promoting-sustainability-related-products/) together with a summary of issues we have identified in our surveillance work in this area.

Finally, even though there is new law on the horizon in the manner of mandatory climate reporting, this will require significant additional and new compliance obligations. Until these laws take effect, our focus will remain on existing laws.

This month, we will announce our 2024 enforcement priorities at the ASIC Annual Forum in Melbourne. Greenwashing will continue to be a priority. 

This article first appeared under the headline 'Red Light for Greenwashing’ in the November 2023 issue of Company Director magazine.