ESG: Addressing greenwashing in financial services

In 2022, financial services firms expect increased scrutiny of ESG credentials from regulators, shareholders, customers as well as other stakeholders. Firms need to be proactive in mitigating the risk of allegations of misleading statements or greenwashing to avoid enforcement action and complaints, particularly, regulatory investigation and censure, civil litigation and the negative financial impacts arising from reputational risk.

In this article, we will explain what greenwashing is, how it can be a reputational risk and steps you can take to avoid it.

The term greenwashing was first used by Jay Westerveld in the 1980’s and it implies any dishonest practices used by businesses to represent themselves as more sustainable either by giving a false impression or providing misleading information as to the sustainability of a product/service.

As emphasised in the Financial Services Authority (FCA) ESG strategyopens in a new tab, the increase in demand for private sector products with sustainable credentials is increasing,  currently  $35 trillion of assets under management (AUM) are in ESG-labelled funds. With this in mind it is in everyone’s interest that the markets for sustainable financial products are robust and trusted.

Greenwashing is a priority issue for the financial services sector in most jurisdictions. The risk of greenwashing, and consequently the focus by regulators, consumers, and environmental groups, has increased exponentially as consumers/investors proactively seek ‘sustainable’, ‘green’, and ‘planet friendly’ products/investments. They are also challenging greenwashing via regulatory complaints, lawsuits and other actions, for example, the critical media attention experienced by producers and funders of single-use plastics.

The asset management sector is proactively marketing ESG funds. However, such ESG funds may misrepresent their ESG criteria, and regulators worldwide are clamping down on these incidents of greenwashing. Last year, the Competition and Markets Authority (CMA) published generic guidance on sustainability goals.

Additionally, CMA’s Green Claims Code aims to protect consumers from misleading environmental claims/greenwashing.  It also provides six key principles which serve as a valuable tool to help all businesses avoid greenwashing. This year may well see the CMA propose legal changes to bolster its anti-greenwashing campaign, as the CMA builds on its Green Claims Code by announcing an investigation of corporate sustainability claims.

Similarly, the USA’s Securities and Exchange Commission (SEC) is focussing on all ESG issues. Its newly formed ESG Task Force will prioritise the investigation of climate and ESG-related misconduct (greenwashing) this year.

The FCA recognises that over the last few years, the financial services sector has ‘seen a dramatic increase in ESG and sustainable investments which has also led to increasing concerns about firms confusing or even misleading consumers about the nature of some of these investments.’ As a result, the FCA, HM Treasury and the Treasury Select Committee must take further steps to achieve full transparency to protect investors, pension savers, etc., who want to secure good returns by supporting sustainable, green products, from being misled and mis-sold because of greenwashing.

There are no specific UK sanctions for those found guilty of greenwashing, although traditional sanctions for fraudulent misrepresentation or contractual claims, may apply. Reputational risk is a significant reason as to why greenwashing matters, even accusations or suspicions of greenwashing  could be damaging.  

The anticipated increase in litigation in 2022 based on greenwashing claims is another reason why organisations should focus on tackling this issue. ESG commitments contained in public statements, decarbonisation pledges, CSR claims, etc., must translate into real action to avoid vulnerability to accusations of greenwashing, not only against the corporates themselves but increasingly also brought against ‘facilitators’ such as financiers, insurers, advisors, and PR agencies.

Motivations for caring about greenwashing are not all negative, there are also financial incentives for funders. The EU is considering lowering capital requirements for sustainable finance. Helpfully, the industry has promoted voluntary guidelines, the Green Loan Principlesopens in a new tab, and the Sustainability Linked Principlesopens in a new tab, to assist lenders and borrowers in understanding the scope of sustainable, or green, finance.

Although greenwashing is not easy to avoid, you can take certain steps to mitigate the risk of greenwashing claims:

1. Education
   Implementation of programmes to upskill the board and employees on the fundamentals of ESG and the risk of greenwashing is a critical starting point.
   
   
2. ESG governance
   Embed ESG criteria in existing risk management procedures and controls. Consider introducing a bespoke ESG policy. ESG governance will assist the business to follow and have evidence of robust processes to make accurate public statements and claims about how ‘green’ or sustainable their products and services are.
   
   
3. Evolving regulation
   Regulations will help avoid the risk of greenwashing. The European Commission (EC) is seeking to strengthen national authorities’ ability to deal with greenwashing in a coordinated manner. The EC’s motivation to get this right was demonstrated by its announcement that the implementation of level two requirement of the Sustainable Financial Disclosure Regulation (SFDR) would be delayed by six months to 1 July 2022 in order to address concerns raised by national regulators about greenwashing, for example, the risk of firms incorrectly self-certifying products as meeting enhanced ESG characteristics described in Articles 8 and 9 of SFDR (SFDR will require fund managers to disclose the ESG characteristics of their financial products with Article 8 funds proactively promoting ESG characteristic whilst the main objective of Article 9 funds being sustainable investments). Fortunately, SFDR’s delay did not impact the Taxonomy Regulation, part of the EU’s Green Deal, providing a list of green activities on 1 January 2022.
   
   Rather than transposing SFDR into national law, the UK has encouraged businesses to comply with SFDR, whilst also opting to apply the Financial Stability Board’s Task Force for Climate-Related Financial Disclosures. Chancellor Rishi Sunak announced the UK Taxonomy intended to help address concerns about, and avoid accusations of, greenwashing using technical screening criteria. The UK Taxonomy may be based on the EU Taxonomy’s scientific metrics to the extent that they are deemed appropriate for the UK market.
   
   
4. Regulator and industry guidance
   Be mindful to ensure that any ‘green’ or sustainable claims comply with the CMA’s Green Claims Code principles as well as any guidance released by industry, for example, guidance by Advertising Standards Agency on misleading advertisements.

Ideally, the voluntary, as well as anticipated mandatory, corporate disclosure regime should enable asset managers, financial advisors, and investors to access ‘reliable, comparable and verifiable information’ to determine what is sustainable/green to assess their portfolio’s carbon footprint. The SEC takes a different approach to greenwashing by enforcing existing rules rather than introducing new ones. Time will tell which is the most effective approach. Unfortunately, from an ESG point of view, time is another resource which is quickly running out.

If you'd like to discuss the risks of greenwashing and how to avoid it, please contact us.