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The Federal Court has imposed a record $11.3 million penalty on Mercer Superannuation (Australia) Limited for misleading claims about the sustainable nature and ethical practices of some of its investment products.

In a case brought by the Australian Securities and Investments Commission (ASIC), Mercer admitted to making misleading statements about seven “Sustainable Plus” investment options, marketing the products to those who ‘are deeply committed to sustainability’ as they falsely claimed they excluded investments in companies involved in fossil fuels, alcohol, and gambling.

This landmark decision marks ASIC’s first greenwashing case, which Sarah Court, ASIC Deputy Chair, said would deliver a strong message to the financial services industry about the importance of accurate and transparent environmental, social, and governance (ESG) disclosures.

”Today’s matter is a strong example to the financial services industry of the greenwashing action we will take. We will continue to monitor the market for ESG-related claims that cannot be validated by evidence to ensure the market is fair and transparent,” Court said.

In his decision, Justice Christopher Horan pointed to the seriousness of the contraventions admitted by Mercer which arose from “failures by Mercer to implement adequate systems to ensure that ESG claims in relation to its superannuation products were accurate, and to monitor and enforce the application of any sustainability exclusions associated with such ESG claims.”

Horan also added that, like many other industries, it is vital that consumers in the financial services industry can have confidence in ESG claims made by providers of financial products and services when making investment decisions.

“Any misrepresentations in relation to ESG policies or practices associated with financial products or services… undermines that confidence to the detriment of consumers and the industry generally,” Horan said.

Mercer Super has agreed to pay ASIC’s costs.

ASIC is actively pursuing greenwashing cases, with two additional cases currently before the Federal Court against Vanguard and Active Super. They have also issued more than $270,000 in fines for alleged greenwashing to several companies including Tlou Energy, Vanguard, Diversa Trustees, Black Mountain Energy, Future Super, and Morningstar.