Out-Law News 2 min. read
01 Dec 2023, 4:17 pm
The UK’s Financial Conduct Authority (FCA) has indicated that addressing greenwashing must be actively considered as a separate concept by regulated financial firms when meeting their obligations to be “fair, clear and not misleading”, according to legal experts.
Financial services regulatory experts Elizabeth Budd and Jonathan Cavill of Pinsent Masons were commenting on the FCA’s proposed guidance (14-page PDF/360KB) on the new ‘anti-greenwashing’ rule, which will take effect at the end of May next year across the UK’s financial services sector. The anti-greenwashing rule requires all FCA-authorised firms to ensure that sustainability-related claims made about financial products or services are “fair, clear, and not misleading, and consistent with the sustainability profile of the product or service”. The guidance is set to provide clarification of its expectations for firms that makes claims about the sustainability of a product or service.
“Understanding of climate and sustainability is increasing and improving year on year and what might have been considered acceptable 12 months ago is no longer necessarily the case. Meeting these regulatory obligations is not merely a marketing exercise – there needs to be a proper understanding of the underlying data,” Budd said.
Ensuring communications are fair, clear and not misleading is a generic concept, Budd said, and while anti-greenwashing overlaps with these generic obligations it should be considered specifically.
“Formal guidance in this area is a welcome addition. It builds on previous statements and publications from the regulator and firms should be in no doubt that the regulator, whilst accepting that everyone is on a learning curve, will be seeking to bring their regulatory enforcement options to bear if they consider that firms are failing to bring their best efforts to the issue,” she added.
Meeting these regulatory obligations is not merely a marketing exercise – there needs to be a proper understanding of the underlying data
As set out in the consultation paper, firms should ensure their sustainability-related claims are correct and capable of being substantiated; clear and presented in a way that can be understood; complete; and fair and meaningful in relation to any comparisons to other products or services. “These appear to be absolute concepts and as seen with other sustainability matters there is still much that is uncertain” Budd said.
According to an example given in the paper, a firm claiming that an investment fund is ‘fossil fuel free’ would be making a false statement if the investment fund includes investments in companies involved in the production, sale, and distribution of fossil fuels where the company’s revenue earned from those activities is below a certain threshold. This statement is not factually correct and is not capable of being substantiated, which makes it potentially misleading.
Cavill said that this proposed guidance reflects the FCA's commitment to fostering an environment where consumer trust is paramount and market operations are transparent and credible.
“With this guidance, the FCA directly tackles the growing concern of 'greenwashing' by establishing rigorous standards for sustainability claims made by authorised firms. This move is in line with the FCA's broader strategy to enhance supervision, enforcement, and remedial actions within the financial sector. By demanding clarity and honesty in sustainability claims, the FCA not only ensures consumer protection but also promotes market integrity,” he said.
In addition, according to Budd, this also helps to emphasise that the FCA now has an obligation under the regulatory principle introduced in the Financial Services and Markets Act 2023 (FSMA 2023) to contribute towards the government’s commitment to achieve a net zero economy by 2050 where appropriate.
The consultation on the guidance of the ‘anti-greenwashing’ rule closes on 26 January 2024, with the new rule then due to take effect from 31 May 2024.
The new ‘anti-greenwashing’ rule forms part of a wider package of ‘ESG-related interventions outlined in a new policy statement issued by the FCA earlier this week. Another important part of policy relates to new sustainability disclosure requirements (SDR) and a fund labelling regime for asset managers. These measures are due to take effect in 2024.
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