Page 11 - Luce 2024

Point of View

Climate Futures at the University of Melbourne documents These cases related to false or misleading claims made in
at least 38 legal interventions to address greenwashing as of relation to particular products marketed as having ‘green’
November 2023. credentials, for example, tyres or paint, or claims made by
companies that their products or services were accredited
While 38 legal interventions does not sound like a large under particular schemes.
number of cases, it is important to bear in mind that this is not
an indication as to the number of instances of greenwashing. For example, in ACCC v Goodyear Tyres, the company
Enforcement action is often saved for the most egregious made a number of misleading representations about the
conduct. Moreover, greenwashing is a relatively new idea and environmental benefits of their new range of tyres. In ACCC
I expect we will see more interventions in the years to follow. v Prime Carbon, the company made representations that
they were issuing carbon credits that were accredited with a
What is a greenwashing case? government scheme, but this was not the case.
To dig down into the data on greenwashing legal interventions
in a little more depth, more interventions have been brought Product and accreditation cases have continued to be brought
in the last two years (15 in 2023 and 12 in 2022) than in all between 2021 and 2023. For example, in Australian Parents
preceding years (11 cases). for Climate Action v Energy Australia, the plaintiffs argue that
Energy Australia’s marketing of their ‘Go Neutral’ gas product
In addition, these cases have not just been confined to as ‘green’ is misleading. This is because these products mainly
litigation filed in Australia’s courts. While just over half of use energy from burning fossil fuels.
these cases have been brought in courtrooms or before
another complaint resolution body (20 cases), other legal In addition, other ‘next generation’ greenwashing cases have
interventions have included 12 legal letters written by not-for- been filed between 2021 and 2023 that relate to the other
profit groups and individuals and six infringement notices that types of greenwashing cases i.e. financial product, company-
have been issued by ASIC. wide and financial entity-wide claims.

I suggest that greenwashing cases can be categorised as In financial product cases, complaints have challenged
falling into several main ‘types’. They are related to: company representations made by financial sector entities about the
products/projects or financial products; company-wide ‘greenness’ of superannuation products or other investment
claims or financial entity-wide claims; and cases relating fund products.
to accreditation schemes/logos and symbols. These are
represented in a two by three grid below: For example, in ASIC v Vanguard, ASIC has taken Vanguard
to court arguing that they misrepresented that all securities
in the Vanguard Ethically Conscious Global Aggregate Bond
Company Products/Projects Financial Products Index Fund (Hedged Fund) were screened against certain
Environmental, Social and Governance (ESG) criteria.
Company–wide Claims Financial Entity–wide Claims
Next generation greenwashing legal interventions have also
challenged sustainability conduct at an entity-wide level.
Accreditation Schemes / Logos and Symbols These cases challenge the conduct of corporate and financial
sector entities. For example, in ACCR v Santos, ACCR argue
that statements made by Santos in annual reporting and
Based on this typology of cases, two ‘generations’ of on their websites are misleading. These statements include
greenwashing cases have been filed in Australia. that Santos has a clear and credible pathway to ‘net zero’
greenhouse gas emissions and is a producer of ‘clean energy’.
First generation cases filed between 2008 and 2021 only fell
into two of the types of cases: company products/projects or
accreditation schemes.

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