Use of performance figures in marketing materials – ASIC takes action

ASIC has taken action against the trustee of HESTA superannuation fund. The allegations related to false or misleading statements made in HESTA’s marketing materials. In response to these allegations, HESTA paid $48,600 to comply with three infringement notices issued by ASIC.

The Misleading Marketing Materials

ASIC alleges that between 23 August 2022 and 18 July 2023, HESTA published false or misleading marketing materials multiple times on their social media platforms and website.

These materials pertained to its ‘Balanced Growth’ superannuation investment option and referenced 10-year performance figures without disclosing the specific period to which these figures applied.

ASIC was concerned that these marketing materials would lead consumers to believe that the performance data was current, despite it ending 5 to 14 months before publication. Additionally, ASIC noted that the past performance figures advertised by HESTA were higher than the more recent performance figures available during the period of publication.

ASIC’s guidance on using performance figures

Regulatory Guide 53 provides detailed guidance for the financial services industry on the appropriate use of past performance information in marketing material. It covers important points including:

  • Comparisons
  • Treatment of fees
  • Out of date figures
  • Use of “non-actual” past performance figures
  • Calculation methodologies
  • Implications about future returns

It is important that firms promoting their performance information closely review this guidance closely.

Where past performance information is used to support claims about an entity’s skill or good performance, it may be misleading to selectively use past performance to exaggerate success or disguise lack of success.

Furthermore, the marketing material containing past performance data could also be misleading if the data is not up to date and does not prominently display the end date for the performance figures.

Additionally, Regulatory Guide 234 provides guidance on best practices for advertising financial products and services to avoid engaging in misleading or deceptive conduct. Key principles include considering the audience’s characteristics, delivering balanced messaging, prominently displaying risk warnings, providing realistic fee impressions, explaining past performance reliance, and ensuring accuracy in visual materials.

Sophie Grace provides its clients with a detailed marketing checklist which covers past performance and the other guidance from ASIC regarding promotional materials. It is also available for purchase on our website shop. We encourage all firms to use this type of resource as a basis for review and approval before dissemination of all new materials.

Background

ASIC has a strong, ongoing focus on financial products marketing across various media channels. In 2022 alone, ASIC reviewed over 7,000 advertisements across print media, television, radio, digital and social media, such as Facebook, Instagram and Tiktok.

Further Reading

23-299MR HESTA trustee pays infringement notices for misleading marketing

 

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