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Essential best practices to mitigate greenwashing

In the first article of the series, which explored ‘What greenwashing risks mean for the legal profession’, we outlined the key principles that legal and risk management professionals are to follow to mitigate such risks. These include: Making accurate and truthful claims Explaining conditions or qualifications Using clear and understandable language Ensuring accountability in the value chain In this article, we take it a step further, delving into the best practices and reviewing real-life case studies for two of the principles: (1) making accurate and truthful claims, and (2) explaining conditions and qualifications to sustainability-related assertions. We also highlight how adopting globally recognized reporting frameworks, such as the GRI Standards, can help businesses to enhance transparency, reduce the risk of greenwashing, and improve stakeholder trust. Making accurate and truthful claims When making any environmental claims, businesses should ensure that: The claim constitutes a verifiable environmental statement; It is backed by scientific evidence; and Consumers can assess and examine the claim against competitors. It is imperative that marketing materials and ESG disclosures provide or direct consumers to the evidence that backs up the claims made, especially for any comparative statements - like ’greater energy savings’ or similar. Here, clear and transparent communication plays a key role, helping to prevent consumer misinterpretation. Case study: UK Advertising Standards Authority (“ASA”) ruling on Wizz Air Allegations: By stating that it is ’one of the greenest choices in air travel’, Wizz Air, a Hungarian airline, has violated UK advertising rules. Basis for ruling: Although the airline provided evidence for the claim made, the advertisement itself did not include sufficient information for consumers to analyze it or compare the claim with those made by competitors. Wizz Air’s defense: For their defense of the statement, Wizz Air submitted documentation proving that the airline: had the lowest carbon emissions per number of seat kilometers flown by paying passengers - attributed to the youngest and most carbon-efficient fleet in Europe; was actively renewing its fleet of airplanes and replacing the current fleet with airplane models that had the lowest fuel consumption per seat kilometer in their category; had invested in research and development of sustainable aviation fuel; and had established an ESG Governance structure, ensuring that the environmental issues were core to the business strategy, and that any sustainability statements were verified by data, assurance and benchmarking. Counter-arguments: The ASA acknowledged that the claim was based on the type of aircraft used, and the carbon emissions per passenger measured in carbon emissions per number of seat kilometers flown by paying passengers. However, the issue was that the company did not include that same information in the advertisement itself, and the evidence was only produced in response to the investigation. Outcome: In the end, the advertisement was prohibited, and Wizz Air was warned to ensure that any environmental claims made in the future are transparent, include verifiable evidence and provide sufficient information for consumers. Explaining conditions or qualifications to sustainability-related assertions To minimize the risk of making any misleading or ambiguous claims, companies should: Disclose any caveats or limitations prominently; and Ensure that sustainability-related goals are both credible and verifiable. Both of these considerations should be integrated into due diligence and compliance processes in order to prevent misstatements. Case study: Australian Securities and Investments Commission (ASIC) versus Vanguard Investments Australia Ltd.  (Vanguard) [2024] FCA 308 Allegations: By overstating the ESG screening process for its Ethically Conscious Fund, Vanguard has allegedly misled investors and violated Australia’s financial services law. Vanguard’s representations to the public: Vanguard made the following statements to potential investors that were deemed to be false or misleading: the ESG Fund offered an ethically conscious investment opportunity by tracking the return of an index; prior to being included in the index and the ESG Fund, securities were researched and screened against applicable ESG criteria; and securities that violated applicable ESG criteria were excluded or removed from the index and therefore the ESG Fund. Findings: In broad terms, Vanguard’s representations were viewed by ASIC to be false or misleading because: the research and screening for the index, and the ESG Fund as a consequence, had significant limitations. For instance, a large proportion of issuers of securities included in the index (approximately 74% by market value) were not researched and screened against ESG criteria. the fossil fuel screen did not cover companies that derived revenue from the transportation or exploration of thermal coal; and the index and the ESG Fund included issuers that violated the applicable ESG criteria. Outcome: Vanguard was penalized A$12.9 million. Mitigating factors, including self-reporting and corrective actions, reduced the original penalty of A$21.6 million initially sought by ASIC. A key takeaway from this example is that any aggravating and mitigating factors must be included in the company’s internal compliance systems, ensuring that appropriate measures are in place for disclosures to accurately reflect the ESG characteristics of products and services. That way, issues can be identified and addressed quickly. The fact that Vanguard received a 25% discount on the penalty because the company self-identified and self-reported the issue, as well as cooperated promptly and constructively with the ASIC investigation and court proceedings, demonstrates the value of ensuring that authorities are promptly alerted should an incident occur. The organization also needs to be able to demonstrate its remedial efforts effectively. The role of sustainability reporting and GRI Standards As illustrated, both case studies highlight the importance of transparency, accountability, and verifiability of ESG claims. Sustainability reporting - especially when aligned with globally recognized reporting standards such as GRI’s - provides a structured approach to achieving these goals. How international standards, such as the GRI Standards, add value: Enhanced transparency: the GRI Standards guide organizations in providing a structured approach towards making clear, comparable, and comprehensive disclosures about their environmental, social, and governance impacts. This helps stakeholders verify claims and understand the context of the organization's actions. Risk reduction: by adhering to the GRI Standards, companies can reduce the risk of unintentional greenwashing. The Standards emphasize data accuracy, evidence-based claims, and stakeholder inclusivity, ensuring that sustainability reports meet regulatory and market expectations. Respond to the needs of stakeholders: GRI-aligned sustainability reports offer a recognized foundation for comparable environmental disclosures, reflecting the information expectations of a wide range of stakeholders, including consumers, investors, and regulators. Due diligence support: using international standards such as the GRI Standards helps organizations identify potential gaps in the management of key ESG issues and ensure that their claims are consistent with their operations and policies. Transparency sets the conditions for long-term success By embracing internationally recognized standards, such as the GRI Standards, businesses can also build credibility, avoid pitfalls, and contribute to a more sustainable and transparent marketplace. As the regulatory landscape around greenwashing continues to tighten, organizations that prioritize credible and evidence-based sustainability reporting will be better positioned for long-term success. SIGN UP FOR THE ESG MASTERCLASS JOINTLY ORGANIZED BY GLOBAL REPORTING INITIATIVE AND ALLEN & GLEDHILL! For a deeper dive into greenwashing and other key topics in the evolving ESG landscape, don’t miss the online ESG Masterclass jointly organized by Global Reporting Initiative and Allen & Gledhill: Date: 25 to 27 February 2025 Time: 3.30pm to 6.45pm (Singapore Time) Venue: Zoom Who should join: Legal counsel, compliance professionals, key sustainability decision makers and business leaders CPD Points: Participants may be eligible to earn up to 8 Public CPD Points (pending confirmation of accreditation for the online format). Spots are filling up fast! For sign-ups and more information on the Masterclass, visit https://www.allenandgledhill.com/perspectives/our-commitment-to-sustainability-esg/esg-masterclass/ Authors: Elsa Chen, Partner (Chief Economist), Allen & Gledhill LLP, and Dr. Allinnettes Go Adigue, Director of GRI ASEAN  
12 February 2025

What greenwashing risks mean for the legal profession

As sustainability issues take center stage in corporate governance, could your company be at risk of inadvertently misleading investors or consumers? Regulators are increasing the pressure on companies to disclose climate-related risks and opportunities, while many key stakeholders are prioritizing sustainability. This means companies are incentivized to make ESG-related claims to stay competitive. Yet business leaders are increasingly recognizing that operating without considering, disclosing or being asked about their impacts is nearly impossible. As companies respond to demands for both mandatory and voluntary ESG disclosures, the risk of greenwashing grows. Regulators are stepping in to address false or exaggerated claims that misdirect investment and customer spending. Investors and customers are also initiating litigation to hold companies accountable for greenwashing. The reputational, regulatory and litigation risks of greenwashing are higher today than ever before, posing significant challenges for legal and risk management professionals. Why evaluate greenwashing risks? Greenwashing refers to practices that deceive or mislead stakeholders into believing a company’s goods or services are more sustainable than they truly are. It can take many different forms, from intentionally deceptive statements to unintentional omissions, due to a lack of understanding of ESG risks. Recent studies highlight how prevalent greenwashing has become. For example: A Hong Kong Monetary Authority studyrevealed that one-third of corporate green bond issuers globally had worse environmental performance after their initial green bond issuance. An International Consumer Protection Enforcement Network reportfound that 40% of online green claims could be misleading consumers. A market study conducted by the National University of Singapore Business School and funded by the Competition and Consumer Commission of Singaporeconcluded 51% of green claims were unsubstantiated. Regulatory scrutiny on greenwashing is growing across jurisdictions with key recent enforcement actions including: Australia (2024): In a case filed by the Australian Securities and Investments Commission (ASIC), the Australian Competition and Consumer Commission took action against Clorox Australia Pty Ltd for false claims about recycled ‘ocean plastic’, while the Australian Federal Court fined Mercer Superannuation A$11.3 million for misleading ESG claims. ASIC has also brought a civil action against Vanguard Investments Australia Ltd for incomplete information and inaccurate ESG statements on its ESG exclusionary screens for the Vanguard index fund. Italy (2024): The Italian Competition Authority investigated the Armani and Dior Groups for misleading claims related to ethical labor practices and legal compliance within their supply chain. Singapore (2023): The Advertising Standards Authority of Singapore issued a notice to PRISM+ for unsubstantiated energy efficiency claims regarding air conditioners. UK (2023):  Following a Competition Markets Authority investigation into environmental claims in the fashion industry, ASOS, Boohoo and Asda committed to making their claims clearer. Canada (2022): The Canadian Competition Bureau fined Keurig CA$4 million for misleading claims about the recyclability of its single-use plastic coffee pod. How legal and risk management professionals can help to manage the greenwashing risks Legal and risk management professionals play a crucial role as gatekeepers for their organizations, tasked with identifying and avoiding current and future legal and regulatory risks. When it comes to greenwashing, their role is to ensure that the company’s ESG claims are accurate, verifiable and well-substantiated. This requires implementing robust ESG due diligence processes and working closely with sustainability teams and external service providers. Legal and risk management professionals are already responsible for ensuring companies do not engage in misleading statements under securities, misrepresentation, directors’ liabilities, consumer protection and advertising laws. Greenwashing now adds another layer to this responsibility, requiring special attention to environmental and sustainability claims. Key challenges include: Recognizing when a claim is misleading: Assessing whether claims are based on adequate and accurate information and determining how they will be perceived by investors, consumers and other stakeholders. Ensuring the accuracy of underlying data:Legal teams must ensure that the data supporting ESG claims is reliable and scientifically sound. Monitoring the value chain:Companies must be accountable not only for their own ESG practices but also for those of their suppliers and partners. Legal professionals should work with procurement teams to audit the entire value chain and ensure that third-party practices align with stated sustainability commitments. Best practices for avoiding greenwashing Legal and risk management professionals can mitigate greenwashing risks by following these key principles: (1) Make accurate and truthful claims Recognize all sustainability claims:Any statement suggesting that a product or service has a positive or neutral impact on the environment or local community, or is less damaging than another, constitutes a sustainability claim. This can include the overall impression created by the text and visual elements. Verify claims with scientific evidence:Ensure that every claim is supported by credible data. Claims should present the full picture, including any qualifications. For instance, if a product feature is industry-standard, presenting it as a unique sustainability benefit may be misleadin (2) Explain conditions or qualifications Disclose caveats prominently:If certain conditions be met for a claim to hold true (e.g., a product is only recyclable in specific facilities), these qualifications should be clearly disclosed alongside the main claim. Ensure verifiable future goals:If a claim is related to future sustainable objectives, ensure the company has a clear, actionable strategy to achieve these goals, along with reasonable grounds for making the claim. (3) Use clear and understandable language Simplify complex terms:Assume that the target audience does not have specialized scientific or industry knowledge. Define terms clearly and avoid jargon. Explain scientific language:When using technical terms, explain their implications. This ensures consumers fully understand the claimed environmental or sustainable benefits and limitations. (4) Accountability in the value chain Close cross-department collaboration:Legal teams, procurement, operations and sustainability teams need to coordinate to ensure ESG compliance throughout the entire value chain. Establish processes for auditing suppliers’ practices:Companies need to consider clauses in contracts that hold suppliers accountable for meeting environmental standards. By embedding sustainability into the supply chain, companies can reduce their exposure to greenwashing risks. Use credible ESG reporting frameworks and standards: Ensure that internationally adopted sustainability reporting frameworks are applied by the organization, such as the GRI Standards, to increase the reliability and comparability of disclosed information. For legal and risk management professionals, greenwashing presents new challenges but also an opportunity to lead on ESG governance. To mitigate these risks, the first step is to conduct a greenwashing risk assessment within the company, revisiting all ESG claims made across product lines and services. Collaborating closely with sustainability and marketing teams to align claims with the most reliable data, with robust disclosure practices and ongoing monitoring, can prevent potential greenwashing from slipping through the cracks. In the second and third articles of this series, we will delve deeper into the evolving legal and regulatory environment, providing detailed case studies on greenwashing and how companies can successfully navigate this complex issue. SIGN UP FOR THE ESG MASTERCLASS JOINTLY ORGANIZED BY GLOBAL REPORTING INITIATIVE AND ALLEN & GLEDHILL! For a deeper dive into greenwashing and other key topics in the evolving ESG landscape, don’t miss the online ESG Masterclass jointly organized by Global Reporting Initiative and Allen & Gledhill: Date: 25 to 27 February 2025 Time: 3.30pm to 6.45pm (Singapore Time) Venue: Zoom Who should join: Legal counsel, compliance professionals, key sustainability decision makers and business leaders CPD Points: Participants may be eligible to earn up to 8 Public CPD Points (pending confirmation of accreditation for the online format). Spots are filling up fast! For sign-ups and more information on the Masterclass, visit https://www.allenandgledhill.com/perspectives/our-commitment-to-sustainability-esg/esg-masterclass/ Authors: Elsa Chen, Partner (Chief Economist), Allen & Gledhill LLP, and Allinnettes Go Adigue, Director of GRI ASEAN
12 February 2025
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