The next chapter in greenwashing: beware of the enthusiastic Facebook post

04 May 2023

On 2 May 2023, ASIC published an infringement notice against Future Super Investment Services Pty Ltd (Future Super) for alleged greenwashing based on a post on Future Super’s Facebook page. The notice is the fifth infringement notice since October last year issued by ASIC relating to alleged greenwashing behaviour and reinforces ASIC’s resolve to continue to effect change in this area so that firms’ environmental claims are appropriate and supported by evidence.

ASIC’s ‘greenwashing’ infringement notices to date have focussed on two key issues:

  1. Statements made by ASX listed companies that their projects would produce ‘clean’ energy or would be ‘carbon neutral’; and
  2. Products offered by superannuation trustees or fund managers that were not true to label (i.e. the investments made by the superannuation trustee or fund manager did not reflect the promises made in the product literature).

The civil penalty proceedings that ASIC recently commenced against Mercer Superannuation (Australia) Limited also falls into category 2 above. Our report on ASIC’s action against Mercer is available here.

ASIC’s most recent infringement notice against Future Super adds to the growing list of areas where ASIC has been prepared to take enforcement action for alleged greenwashing. The action against Future Super focused on a statement made on Future Super’s Facebook page that ‘Naysayers don’t join together to move nearly $400 million out of fossil fuels‘. ASIC alleged that:

  • the post conveyed that the Fund had, on or about the date of the post, moved nearly $400 million out of fossil fuels;
  • the total funds under management held by the Fund was approximately $400 million as at that date;
  • Future Super had no basis upon which to represent that the entirety of funds under management had been invested in fossil fuels prior to being invested in the Fund; and
  • Future Super overstated the positive environmental impact of the Fund.

The action against Future Super serves as a timely reminder for businesses to exercise caution in making environmental claims on all forms of marketing materials, including on social media. Whilst product issuers invest significant time and effort in verifying the contents of product literature, such as product disclosure statements, it is common that informal marketing materials (particularly social media posts) are subject to less rigorous processes.

Firms would be well advised to consider whether the processes in place for the approval of marketing materials (in whatever form or channel) relating to investment products are fit for purpose and include appropriate consideration of the validity of environmental claims.

This article was written by Polat Siva, Partner and Brenton Pollard, Special Counsel.


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