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Regulatory action on greenwashing

Greenwashing is an enforcement priority for regulators in Australia, including ASIC and ACCC. 

In the recent case of ASIC v LGSS Pty Ltd [2024] FCA 587 (Active Super case), ASIC was successful against the trustee of Active Super. In this case Active Super was found to have made false or misleading representations that it did not invest in certain sectors or activities. The purpose of these representations was to promote the superannuation fund’s ESG credentials. The court found that Active Super did actually invest in those sectors either directly or indirectly through its investment funds. 

Greenwashing is an enforcement priority for regulators in Australia, including ASIC and ACCC. 

In the recent case of ASIC v LGSS Pty Ltd [2024] FCA 587 (Active Super case), ASIC was successful against the trustee of Active Super. In this case Active Super was found to have made false or misleading representations that it did not invest in certain sectors or activities. The purpose of these representations was to promote the superannuation fund’s ESG credentials. The court found that Active Super did actually invest in those sectors either directly or indirectly through its investment funds. 

The Active Super case highlights the need to ensure that any claims about investments are consistent, verifiable and accurately reflected in how those exclusions or restrictions are implemented. All ESG or responsible investment policies should be reviewed regulatory to ensure they align to investment decisions and relevant disclosures on all platforms. Any methodologies or definitions used to restrict or eliminate certain types of securities must also be in line with what an ordinary and reasonable consumer would understand them to mean.  

The Active Super case follows ASIC’s successful action in the case of ASIC v Vanguard Investments Australia Ltd [2024] FCA 308. In this case the court found Vanguard had made misleading claims about the composition and exclusionary screening of its Vanguard Ethically Conscious Global Aggregate Bond Index Fund. The case highlights the importance of adequately substantiating any product claims made, if relying on third parties probe the veracity of their statements and ensure any public statements are appropriately reviewed.

It is expected that ASIC will continue to increase its scrutiny of “green” or ESG-related claims. 

Other areas of Government and regulators are also focused on greenwashing. The Senate Standing Committee on Environment and Communications is undertaking an inquiry into greenwashing with its findings expected at the end of the month. Amongst other things, this inquiry is expected to consider legislative options to protect consumers from greenwashing. This government activity is in line with actions taken in the United Kingdom and mainland Europe to crack down on ESG-related claims in various industries. 

But it is not just ASIC that is cracking down on greenwashing. A recent report by the ACCC found that 57% of businesses reviewed in an internet sweep were potentially giving false or misleading information about greenwashing. Concerns were primarily in eight areas:

  • Vague and unqualified claims;
  • A lack of substantiating information;
  • Use of absolute claims;
  • Use of comparisons;
  • Exaggerating benefits or omitting relevant information;
  • The use of aspirational claims, with little information on how these goals will be achieved;
  • Use of third-party certifications; and
  • Use of images which appear to be trust marks.

The ACCC intends to conduct further analysis and will produce guidance material to improve compliance. It has already commenced these steps by releasing eight key principles to making environmental claims. These are:

  1. Make accurate and truthful claims;
  2. Have evidence to back up your claims;
  3. Don’t hide or omit important information;
  4. Explain any conditions or qualifications on your claims;
  5. Avoid broad and unqualified claims;
  6. Use clear and easy-to-understand language;
  7. Visual elements should not give the wrong impression; and
  8. Be direct and open about your sustainability transition.

Demonstrating its intent to consider greenwashing a focus area, the ACCC has also commenced court action against Clorox Australia Pty Ltd for the type of recycled material it has used in some of its products.  
Given the increased focus on greenwashing by regulators, it can be expected we will see more regulatory action on this issue in the near future. 
 

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