The Federal Court has found Vanguard Investments Australia contravened the law by making misleading claims about certain environmental, social and governance (ESG) exclusionary screens applied to investments in a Vanguard index fund.
At a hearing before Justice O’Bryan on 8 March 2024, Vanguard admitted to engaging in conduct that was liable to mislead the public and that it had made representations that were false or misleading.
On 28 March 2024, Justice O’Bryan found that Vanguard contravened the ASIC Act numerous times when it made false or misleading representations about the ESG exclusionary screens that were applied to the Vanguard Ethically Conscious Global Aggregate Bond Index Fund.
These representations were made to the public in a range of communications, including:
- 12 product disclosure statements
- a media release
- statements published on Vanguard’s website
- a Finance News Network interview on YouTube, and
- a presentation at a Finance News Network Fund Manager Event which was published online.
Investments held by the Fund were based on an index called the Bloomberg Barclays MSCI Global Aggregate SRI Exclusions Float Adjusted Index (Index). Vanguard had claimed the Index excluded only companies with significant business activities in a range of industries, including those involving fossil fuels, but has admitted that a significant proportion of securities in the Index and the Fund were from issuers that were not researched or screened against applicable ESG criteria.
ASIC Deputy Chair Sarah Court said, ‘By Vanguard’s own admission, it misled investors on a number of its claims.
‘In this case, Vanguard promised its investors and potential investors that the product would be screened to exclude bond issuers with significant business activities in certain industries, including fossil fuels, when this was not always the case.
‘As ASIC’s first greenwashing court outcome, the case shows our commitment to taking on misleading marketing and greenwashing claims made by companies in the financial services industry. It sends a strong message to companies making sustainable investment claims that they need to reflect the true position.’
The matter has been listed for further hearing on 1 August 2024 at which the Court will consider the appropriate penalty to impose for the conduct.
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Background
As at 26 February 2021, the total funds or assets under management of the Vanguard Ethically Conscious Global Aggregate Bond Index Fund was over $1 billion.
The Fund is a registered managed investment scheme, of which Vanguard is the Responsibility Entity and the Investment Manager. The Fund comprises the ETF, AUD Hedged, and NZD Hedged classes of units.
ASIC’s Information Sheet 271 How to avoid greenwashing when offering or promoting sustainability-related products (INFO 271) provides information for responsible entities of managed funds and super fund trustees about how to avoid greenwashing when offering or promoting sustainability-related or ethical products and investments.
ASIC’s Report 763 ASIC’s recent greenwashing interventions outlines ASIC regulatory interventions made between 1 July 2022 and 31 March 2023 in relation to greenwashing concerns.
ASIC’s Moneysmart website has a range of tools and resources to help people understand money and how to manage it. Find out more about ESG investing is and how it works.
Editor's note:
A hearing on penalty and costs was held on 1 August 2024. Judgment is reserved.