Advertising cryptos in the UK – an ongoing 'red alert' issue for the ASA

The ASA considers the advertising of cryptoassets (cryptocurrencies, utility tokens and NFTs) a "red alert priority issue". Following ten rulings finding crypto ads breached the CAP Code, the ASA updated its online advice on cryptoassets in March 2022.  Shortly after that, it issued an Enforcement Notice to 50 businesses on advertising cryptocurrencies.

ASA Advice on cryptoassets

As we discussed here, a number of clear principles emerged from the rulings issued by the ASA in December 2021 and January 2022.  Some of these have now been used to update the ASA's online advice on cryptoassets which sets out six key principles.

Make clear that cryptoassets are unregulated and not protected

Advertisers must clearly state that cryptoassets are not regulated by the FCA nor protected by financial compensation schemes.  This must be presented clearly and prominently.

Do not take advantage of consumers' inexperience or credulity

Financial products must be set out in a way which allows them to be easily understood by the target audience.  This means marketers should consider where an ad is to be placed and the terminology used.  For example, if an ad appears in a specialist financial publication, more technical jargon may be appropriate than in an ad on an outdoor poster which is not targeted to a particular audience.

Risks need to be clearly set out, so trivialisation or any distraction from the seriousness of the investment must be avoided.  This includes using irresponsible cartoons, nudge techniques, and offering free cryptos with other products.

Advertisers must also make additional costs such as CGT or fees clear.

Include all material information

Ads must not mislead consumers by omitting material information.  For example, it must be clear that the ad refers to cryptoassets.

Make it clear value can go down as well as up

It must be clear that investments are variable and that they can go down as well as up.

State the basis used to calculate any projections or forecasts

Ads may state forecasts or projections for returns consumers may be able to achieve.  The basis used to calculate these must be immediately apparent.

Make it clear that past performance is not a guide for future performance

An ad which fails to do this is likely to be misleading.

Enforcement Notice

Shortly after updating its online advice, the ASA announced it had issued an Enforcement Notice to 50 companies which advertise cryptocurrencies, instructing them to review their ads to ensure they comply with the rules in the CAP Code and treat customers fairly.

The Notice provides guidance on the rules and the ASA warns it will take action in the event of non-compliance.

The scope of the Notice applies to cryptocurrencies, crypto exchanges and ads or promotions which otherwise involve the transfer, sale or supply of cryptocurrencies targeted at UK consumers or that are targeted globally on behalf of UK-based advertisers.  It explicitly excludes NFTs and utility or fan tokens, although the ASA cautions that these are also subject to the CAP Code and that future enforcement action will focus on other forms of cryptoassets.

The Notice covers:

Qualifications

• All ads must expressly and prominently state that - cryptocurrencies are unregulated in the UK, cryptocurrency profits may be subject to CGT, and the value of investments is variable and can go down as well as up.
• Qualifications must be presented clearly for the medium - qualifications in digital poster advertising must be visible, for example appearing in a static box. If they only appear at the beginning of a video, they are likely to be problematic. On a webpage, qualifications should be presented clearly and above the fold, rather than at the bottom of the page.
• Return rates claims – these must be representative and supported by documentary evidence. They must make clear how the rate is calculated and what significant conditions apply (for example the type of cryptocurrency, the amount or any time period required).
• Media limited by time or space – Marketers' own websites and marketing communications in other media including emails, direct mailings, press and magazine ads, leaflets, posters and ads in social media not constrained by low character limits, are unlikely to be considered significantly limited by time or space. Advertisers are expected to do all they can to include all significant conditions in an ad, for example, by using an image stating the conditions. If an ad format cannot clearly display qualifications, the medium may not be capable of hosting compliant ads.
• Qualifications cannot override the overall impression of an ad – ads that contain problem claims will always be a problem; the inclusion of qualifications will not make such an ad compliant.

Design

Ads must not imply:

• Cryptocurrency products or services are regulated
• Past performance necessarily gives a guide for the future or guarantee of future income
• Investments are safe, low risk, or provide guaranteed returns
• There is an urgency to buy or create a fear of missing out
• Investment decisions are trivial, simple, easy or suitable for everyone
• Cryptocurrencies are suitable for purchase on credit

What next from the ASA?

With regard to cryptocurrencies, the ASA will conduct follow-up monitoring.  If it considers problem ads persist after 2 May 2022, it will take targeted enforcement action.  This will include reporting non-compliant advertisers to the FCA.

We can also expect similar enforcement notices to be issued in relation to NFTs and utility tokens in the near future.  This is a high profile area so staying true to both to the letter and the spirit of the CAP Code is crucial.