ASIC issues infringement notices to Fertoz Limited for alleged greenwashing

On 25 June 2024, the Australian Securities & Investments Commission (ASIC) confirmed that, on 21 June 2024, Fertoz Limited (Fertoz) had paid $37,560 in compliance with two infringement notices issued by ASIC in relation to alleged false or misleading statements that Fertoz had made in respect of its Reforestation Project in the Philippines.

In issuing this latest infringement notices, ASIC continues to signal to the market that it will investigate instances of greenwashing and use the enforcement tools available to it where it is of the view that greenwashing has occurred.

Allegations

Fertoz Limited is an ASX listed entity that specialises in the manufacturing, mining and supply of fertiliser. On 15 November 2023, it made a number of statements in a presentation that was published on the ASX which indicated that its Philippines Reforestation Project would secure an offtake partner or funding by the end of 2023 and that it would commence planting in the fourth quarter of the same year.

However, ASIC claimed that the statements made in the presentation were false or misleading as Fertoz had terminated funding discussions with two prospective offtake partners in April and August 2023, leading to delays in securing funding and initial planting.

At that stage, Fertoz had also not entered into any advanced discussions with any new offtake partners nearing completion by the end of 2023, had failed to secure any signed letters of intent and non-disclosure agreements and had not secured the funding necessary to progress the Philippines Restoration Project.

ASIC’s action

ASIC Deputy Chair Sarah Court stated that “This case is another example of ASIC enforcement action where we consider there to be inaccurate or misleading statements made in sustainability-related claims. Greenwashing continues to be in our sights and remains an enforcement priority”.

ASIC has been active in enforcing standards related to environmental, social and governance statements under its Sustainable Finance enforcement priority. To date, the regulator has issued 17 other infringement notices concerning allegations of greenwashing including issuing infringement notices to Morningstar, Future Super. Black Mountain Energy, Diversa Trustees Limited, Vangaurd Investments Australia, Tlou Energy Limited and Northern Trust Asset Management. See our notes regarding these cases here.

This action follows ASIC’s first successful greenwashing civil penalty action against Vanguard Investments Australia, which we reported on here, and the outcome of its proceedings against Active Super, which we reported on here.

It appears that ASIC will remain, vigilant in identifying and responding to ESG misconduct and suspected greenwashing. All public disclosures, including disclosures on the ASX, must be rigorously tested to ensure the veracity of all such claims and companies must ensure that they have evidence available to support them.

If you would like further information, please do not hesitate to contact our team.

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Authored by:

Susan Goodman, Partner
Jack Tipple, Special Counsel
Ahmed El-Jaam, Lawyer