Greenwashing is not a new concept. It is claimed that the term originated in the 1960s, when the hotel industry “devised one of the most blatant examples of greenwashing. They placed notices in hotel rooms asking guests to reuse their towels to save the environment. The hotels enjoyed the benefit of lower laundry costs”.
Since then, greenwashing has taken on a deeper significance, now attracting compliance concerns from the regulator. In June 2022 the Australian Securities and Investments Commission (ASIC) published Information Sheet 271 (INFO 271) How to avoid greenwashing when offering or promoting sustainability-related products. It emphasised that, while the information sheet focuses on sustainability-related products issued by funds, its principles may apply to other entities that offer or promote financial products that take into account sustainability-related considerations.
More recently on 28 March 2024 ASIC celebrated its first greenwashing civil penalty action win. The Federal Court found Vanguard Investments Australia liable for contravening the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) when it made false or misleading representations about its environmental, social and governance (ESG) exclusionary screens applied to investments in a Vanguard index fund.
“It sends a strong message to companies making sustainable investment claims that they need to reflect the true position,” said ASIC Deputy Chair Sarah Court of the decision in the case, Australian Securities and Investments Commission v Vanguard Investments Australia Ltd [2024] FCA 308.
In reporting the Vanguard Investments Australia decision, ASIC referred to their earlier publication [REP 763] Report 763 – ASIC’s recent greenwashing interventions published in May 2023. Here it is noted that:
Between 1 July 2022 and 31 March 2023, we achieved the following results:
- 23 total corrective disclosure outcomes
- 11 infringement notices issued
- 1 civil penalty proceeding commenced.
The tally is steadily increasing with the ruling by the Federal Court against Mercer Superannuation (Australia) on 2 August 2024, ordering the superannuation giant to pay $11.3 million for misleading investors about the sustainable nature of some of its superannuation options.
ASIC’s related media release noted that “This was ASIC’s first greenwashing case brought before the Federal Court; a landmark case both for ASIC and for the financial services industry. It demonstrates the importance of making accurate ESG claims to investors and potential investors.”
In this groundbreaking case, Australian Securities and Investments Commission v Mercer Superannuation (Australia) Ltd (Mercer Super) [2024] FCA 850, Horan J at [3] described “greenwashing” as broadly speaking involving:
“… making false or misleading environmental or sustainability claims in order to make a company or its business appear more environmentally friendly, sustainable or ethical, particularly in order to induce consumers to purchase its products or services or to invest in the company.”
His Honour noted that “Greenwashing has a particular manifestation in relation to financial products, including superannuation and life products”, citing Australian Securities and Investments Commission v LGSS Pty Ltd [2024] FCA 587. Here, O’Callaghan J at [1] maintained that:
“‘greenwashing’ is a term that:
… pertains to the misleading and deceptive disclosures employed by financial institutions to entice environmentally conscious investors into purchasing their financial products that, in reality, fall short of meeting the expected Environmental, Social, and Governance (ESG) or green credentials.”
Horan J went on to explain that regulators rely on prohibitions in relation to misleading or deceptive conduct and false or misleading representations, such as those contained in Subdiv D of Div 2 of Pt 2 of the ASIC Act or Pt 7.10 of the Corporations Act 2001 (Cth). Sections 12DB(1) and 12DF(1) of the ASIC Act are both civil penalty provisions, which enlivens the court’s power to order the payment of a pecuniary penalty upon the making of a declaration of contravention: see ss 12GBA(6)(b) and 12GBB. See [53] of Mercer Super.
Horan J referred (at [56]) to the Vanguard decision above, where O’Bryan J set out the background to the ASIC provisions and also to the High Court in Self Care IP Holdings v Allergan Australia 97 ALJR 388; [2023] HCA 8, where Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ summarised the principles applicable to the prohibitions.
After referring to the discretionary power of the court to make declaratory relief (see [62]–[71]), Horan J went on to consider pecuniary penalties. Importantly, at [73] his Honour noted that:
“The maximum pecuniary penalty applicable to the contravention of a civil penalty provision by a body corporate is the greatest of: (a) 50,000 penalty units; or (b) three times the amount of the benefit derived and detriment avoided because of the contravention; or (c) 10% of the annual turnover of the body corporate for the 12‑month period ending at the end of the month in which the body corporate contravened, or began to contravene, the civil penalty provision, up to a maximum of 2.5 million penalty units: ss 12GBC, 12GBCA(2).”
His Honour then helpfully set out the applicable principles in fixing an appropriate penalty. Matters considered by Horan J included:
- the principal purpose of a civil penalty – see [76]–[77];
- a list of relevant factors which inform the assessment of a pecuniary penalty of appropriate deterrent value – see [78]–[79];
- a list of factors that relate to the objective nature and seriousness of the contravening conduct include – see [80]; and
- a list of factors that concern the circumstances of a corporate contravenor.
In addition, Horan J noted that determining an appropriate penalty for multiple contraventions requires: “consideration of two related principles – the ‘course of conduct’ principle and the ‘totality’ principle”, citing Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243; [2028] FCAFC 73 and Australian Competition and Consumer Commission v Employsure Pty Ltd 407 ALR 302; [2023] FCAFC 5.
As a warning to the market, ASIC deputy chair Sarah Court made clear in her comments on 2 August following the Mercer decision that “We will continue to monitor the market for ESG-related claims that cannot be validated by evidence to ensure the market is fair and transparent”.
