Fertoz Limited (Fertoz) has paid $37,560 to comply with two infringement notices issued by ASIC in which ASIC alleged it made false or misleading statements regarding its Reforestation Project in the Philippines (Philippines Reforestation Project). 

On 15 November 2023, Fertoz, an ASX listed entity specialising in fertilizer mining, manufacturing and supply, made statements in a presentation published on the ASX that said that the Philippines Reforestation Project would obtain an offtake partner or receive funding for the project by the end of 2023, and begin planting the initial hectares in the respective area of the project in quarter 4, 2023.

ASIC alleges that the statements were false or misleading as Fertoz had:

• ended funding discussions with two prospective offtake partners in April and August 2023 resulting in delays in securing a funding partner and initial planting;
• not signed any letters of intent, non-disclosure agreements or engaged in advanced discussions with new offtake partners that were at the stage of reaching completion at the end of 2023; and
• not secured any funding necessary for the progress of the Philippines Reforestation Project.

ASIC Deputy Chair Sarah Court said, ‘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.’

Fertoz paid the infringement notices on 21 June 2024. Payment of an infringement notice is not an admission of guilt or liability.

The specific reasons for ASIC’s concerns are set out in the infringement notices which have been published on the Infringement notices register.

Background 

As part of ASIC’s Sustainable Finance enforcement priority, ASIC has issued 17 other infringement notices in relation to alleged environmental, social and governance (ESG) misconduct:

• two against Morningstar (23-324MR)
• Future Super (23-110MR)
• three against Black Mountain Energy (23-001MR)
• Diversa Trustees Limited (22-379MR)
• three against Vanguard Investments Australia (22-336MR)
• four against TIou Energy Limited (22-294MR)
• two against Northern Trust Asset Management (23-344MR)
• Melbourne Securities (24-029MR)

In March 2024, ASIC won its first greenwashing civil penalty action against Vanguard Investments Australia (24-061MR). In June 2024, ASIC obtained a successful outcome in relation to the superannuation fund Active Super with the Federal Court finding the trustee of Active Super contravened the law in connection with various misleading representations concerning its ESG credentials (24-121MR). ASIC is currently awaiting the outcome of a civil penalty action before the Federal Court against Mercer Super for alleged greenwashing conduct (23-043MR).

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, super fund trustees, and other entities that offer or promote financial products, including listed companies. INFO 271 outlines how these entities should take into account sustainability-related considerations to avoid greenwashing when offering or promoting sustainability-related or ethical products and investments.