ASIC has launched its first court action against alleged greenwashing conduct, commencing civil penalty proceedings in the Federal Court against Mercer Superannuation for allegedly making misleading statements about the sustainable nature and characteristics of some of its superannuation investment options. 

In a media release on Tuesday morning, ASIC alleged Mercer made statements on its website about seven ‘Sustainable Plus’ investment options offered by the Mercer Super Trust, of which Mercer is the trustee. These statements marketed the Sustainable Plus options as suitable for members who ‘are deeply committed to sustainability’ because they excluded investments in companies involved in carbon-intensive fossil fuels like thermal coal. Exclusions were also stated to apply to companies involved in alcohol production and gambling. 

ASIC alleged members who took up the Sustainable Plus options had investments in companies involved in industries the website statements said were excluded. For example: 

  • 15 companies involved in the extraction or sale of carbon-intensive fossil fuels (including AGL Energy, BHP Group, Glencore PLC, and Whitehaven Coal);
  • 15 companies involved in the production of alcohol (including Budweiser Brewing Company APAC, Carlsberg AS, Heineken Holding NV, and Treasury Wine Estates); and 
  • 19 companies involved in gambling (including Aristocrat Leisure, Caesar’s Entertainment, Crown Resorts, and Tabcorp Holdings). 

In doing so, ASIC alleges Mercer made false and misleading statements and engaged in conduct that could mislead the public. 

ASIC deputy chair Sarah Court said the court action reflects the regulator’s continuing efforts to ensure sustainability-related claims made by financial institutions are accurate. 

The proceeding is also the first time ASIC has commenced court action after legislative amendments enhanced ASIC’s powers to act regarding a broader range of superannuation trustee conduct. The amendments arose from the Hayne Royal Commission. 

ASIC is seeking declarations and pecuniary penalties from the court. ASIC is also seeking injunctions preventing Mercer from continuing to make any of the alleged misleading statements on its website, and orders requiring Mercer to publicise any infringements found by the court. 

The date for the first case management hearing is yet to be scheduled by the court. 

ASIC noted action against greenwashing is one of ASIC’s 2023 Enforcement Priorities.