ASIC TARGETING STATEMENTS AND REPRESENTATIONS ABOUT “GREENWASHING” ?

CASE BACKGROUND

1. In October 2022, ASIC issued four (4) infringement notices to Tlou Energy Limited (Tlou), an ASX-listed entity over concerns about alleged false or misleading sustainability-related statements made to the ASX in October 2021.
   
2. Tlou paid A$53,280 as a result of those infringement notices.
3. The infringement notices were issued in relation to statements and images contained in two (2) ASX announcements made by Tlou which claimed that:

• Electricity produced by Tlou would be carbon neutral;
• Tlou had environmental approval and the capability to generate certain quantities of electricity from solar power;
• Tlou’s gas-to-power project would be “low emissions”; and
• Tlou was equally concerned with producing “clean energy” through the use of renewable sources as it was with developing its gas-to-power project.

4. ASIC’s concerns were that Tlou did not have a reasonable basis to make the statements or that the statements were not factually correct.

GREENWASHING EXPLAINED

As ASIC has explained:

“In relation to investments, ‘greenwashing’ is the practice of misrepresenting the extent to which a financial product or investment strategy is environmentally friendly, sustainable or ethical.

Greenwashing distorts relevant information that a current or prospective investor might require in order to make informed investment decisions. It can erode investor confidence in the market for sustainability-related products and poses a threat to a fair and efficient financial system”.

 
The main reason why “greenwashing” is important in the current investment landscape is that there has been an increase in demand for sustainability-related financial products in the Australian market.  Therefore, there is a temptation for entities to “push the envelope” with their disclosures and marketing of their investment products being environmentally friendly, sustainable or ethical, without any proper basis.

With a large proportion of the global economy moving to net-zero goals, ASIC’s attention has heightened. ASIC Deputy Chair, Karen Chester stated that the move to sustainable finance has been “the biggest structural shift in global capital markets” and as a result, there will be increased scrutiny on sustainable claims made not just in the investment space, but for all goods and services.

The action taken by ASIC is the first of its kind against an Australian company in relation to “greenwashing” and it will not be the last. The ASIC Deputy Chair, Sarah Court has stated,

“ASIC is currently investigating a number of listed entities, super funds and managed funds in relation to their green credentials claims. Companies are on notice that ASIC is actively monitoring the market for potential greenwashing and will take enforcement action, including Court action, for serious breaches”.

KEY TAKEAWAYS

•  Review your websites, marketing material and any other public material which makes representations about sustainability to ensure they are accurate and not misleading;
• Terms such as ‘socially responsible’ or ‘ethical investing’ or ‘impact investing’ can be interpreted differently by different people and can vary across products or issuers.

Therefore, when using sustainability-related terminology to describe a product (including in a sustainability-related product label), take care to adequately explain such terminology in the PDS and other promotional material. This is especially important for information that investors might reasonably rely on when deciding whether to acquire that product. Basically, avoid using “vague” sustainability terminology;

• Review the Task Force on Climate-Related Financial Disclosures recommendations (TCFD Recommendations) and consider whether your organisation should adopt them;
• Payment of an infringement notice is not an admission of guilt, however, the negative implications can be very damaging to stakeholder relationships, particularly for consumer-facing companies; and
•  Consider the use of third parties to “certify” or otherwise back up any sustainability claims made in regard to your operations, products and services.