In the last year, the spotlight has well and truly been shone on disingenuous practices in the crypto field and, in particular, the advertising and marketing of cryptocurrencies and digital assets. Towards the end of 2021, the Advertising Standards Authority (the ASA) upheld a number of complaints related to cryptoasset investment advertising. Even global celebrities such as Matt Damon, Kim Kardashian and Floyd Mayweather Jr have come under fire for their alleged roles in the promotion of cryptocurrency. Charles Randell, then head of the FCA, stated that Ms Kardashian, for example, had “asked her 250 million followers to speculate on crypto tokens“, which, in his opinion, may have been the “financial promotion with the single biggest audience reach in history“. This has prompted the EU’s financial regulators to issue guidance for investors to be wary of celebrity crypto ads.
In the UK, the Council of the ASA has stepped up its stewardship of advertising and marketing campaigns from companies providing services related to cryptoassets, such as trading platforms. This action follows the Financial Conduct Authority’s statement published in January 2021 warning consumers of the inherent risks related to cryptoasset investments. The ASA has now followed up with more robust guidance for advertisers in the industry indicating that, due to the risks and complexities involved in cryptoasset trading, advertisers of cryptoassets must take particular care to ensure they do not mislead consumers and are not socially irresponsible in the way they promote them.
In this article we detail the guidance published by the ASA and highlight a few of the cases that spurred the ASA to take this route.
The ASA independently regulates advertising and marketing in the UK. It does not, however, pre-approve advertising. Companies are expected to regulate themselves prior to publishing by reference to the UK Code of Non-broadcasting Advertising and Direct & Promotional Marketing (the CAP Code). The CAP Code’s key provision is the requirement that all advertising should be “legal, decent, honest and truthful” (rule 1.1 CAP Code). The CAP Code also deals more specifically with marketing for financial services in section 14. The ASA has ruled against a number of cryptoassets advertisements that were said to have breached the provisions of the CAP Code.
The ASA’s rulings against Skrill Ltd, CoinBurp Ltd, Exmo Exchange Ltd, Coinbase Europe Ltd t/a Coinbase, eToro (UK) Ltd for example, and most recently against Crypto.com, found that ads such as “Buy Bitcoin with credit card instantly” and “Earn up to 8.5% p.a” were in breach of the provisions of the CAP Code. The ASA found that these advertisements were misleading because they failed to properly highlight the risk of cryptoasset investments to consumers.
In its rulings the ASA also considered the target audience’s perception of cryptoasset investments. It concluded that most adverts did not make it sufficiently clear to the investor that cryptoassets are unregulated. As they did not include a risk warning to this effect, it was likely that consumers could mistakenly believe they were regulated. This itself was misleading and a breach of the CAP Code.
Another example of misleading advertising found by the ASA was a comment by Coinbase that “£5 in #Bitcoin in 2010 would be worth over £100,000 in January 2021. Don’t miss out on the next decade”. The ASA stated this implied that the historical performance of certain cryptoassets could be used as a yard-stick for future performance, and that inexperienced investors may rely on this to guide their investment. The ASA also found that adverts could be socially irresponsible and took advantage of the potential inexperience of investors by implying that cryptoasset investments were straightforward. Phrases used include the following by CoinBurp: “register in minutes, deposit instantly, then make super-easy and secure crypto trades.”
The ASA guidance
The ASA has followed on from its rulings by publishing cryptoasset-specific advertising guidance for companies. The aim is to ensure they are compliant with the CAP Code and that consumers are protected. Much of the guidance references the ASA’s recent rulings, and it provides cryptoasset-specific interpretations of the CAP Code. The ASA’s guidance is distilled below.
Make clear that cryptoassets are unregulated and not protected
As discussed earlier in this note, the ASA indicates that as cryptoassets are not regulated by the FCA, advertisements for cryptoassets should make this point clear. This is to ensure that consumers do not mistakenly rely on the understanding that they are protected by either the Financial Ombudsman Service or the Financial Services Compensation Scheme. A number of the adverts against which the ASA made rulings in 2021 fell foul of this point.
This information or warning should be presented in a sufficiently clear and prominent way. The ASA will consider the size of the text used, the position of the advert and the medium. For example, the ASA considered that a one-second risk warning at the beginning of a 20-second Kraken advert was not a sufficient warning of cryptoassets’ unregulated nature
Do not take advantage of consumers’ inexperience or credulity
The CAP Code requires that advertising for financial products must be set out to be easily understood by the target audience. For example, the language used in an advert targeted at financial services professionals could reference more technical concepts than an advert that is aimed at the average consumer without a substantial understanding of more technical financial concepts. The ASA considers that, as the concepts and terminology relating to cryptoassets is somewhat new, the average consumer is unlikely to be familiar with particularly technical wording. This should be considered to avoid potentially confusing and misleading advertising.
A breach of the CAP Code in this regard may be caused by a failure to adequately and appropriately highlight the inherent risks involved in cryptoasset investments or, in the case of Papa John’s, by trivialising investment in cryptoassets. Papa John’s was giving away a small amount of Bitcoin with every pizza. In the Papa John’s case, this was particularly true, as the target audience of Papa John’s advertising was pizza consumers, yet the advert encouraged the target audience to engage in a high-risk, serious and potentially costly investment without due consideration.
Include all material information
CAP Code rule 3.3 states that adverts must not mislead consumers by omitting material information. This point was considered by the ASA in a ruling against Arsenal Football Club plc when the football club advertised Arsenal FC “fan tokens” – tokens that grant the holders certain allocated rights, such as the right to vote on club matters. The ASA concluded that the advert for the fan tokens was misleading as it did not include explicit reference to the fact that in order to buy a fan token, a holder would first have to purchase other cryptoassets to exchange for fan tokens. The ASA stated this was material information that should have been included and, consequently, found that the advert was misleading.
Make clear that the value can go down as well as up
Rule 14.4 of the CAP Code states that adverts must inform investors that the value of cryptoassets is variable and can decrease in value as well as increase, unless guaranteed, which can result in significant financial losses for investors. The ASA found that almost all of the adverts considered in their recent rulings did not adequately inform consumers of this point. It indicated that in order to be compliant with the CAP Code advertisers should include a statement that makes this sufficiently clear.
State the basis used to calculate any projections or forecasts
Rule 14.3 of the CAP Code states that any forecasts or projections for returns that are shown on an advert must include information illustrating the basis on which any such figures are calculated. This must be “apparent immediately” to the consumer according to the ASA guidance.
The ASA ruled that Crypto.com broke this rule in an advert because it did not explain how the advertised rate of return was calculated or how it could be substantiated with sufficient clarity. The advert claimed that investors could “earn up to 8.5%” on their investment, without making clear the type of cryptoassets that could achieve this return or in fact the period of investment.
Make clear that past performance is not a guide for future performance
Rule 14.5 of the CAP Code requires adverts to make it clear that the historical performance of cryptoassets is not a reliable guide for future performance. The ASA held that Coinbase did not comply with this rule in their advert stating that “‘…£5 in #Bitcoin in 2010 would be worth over £100,000 in January 2021. Don’t miss out on the next decade…”. The ASA believed that this advert did not make sufficiently clear that this link to past performance should not be relied upon as a guide for future investment in cryptoassets and was therefore misleading for consumers.
This year the government announced plans to toughen rules on potentially misleading cryptocurrency advertising, and to bring them within the scope of the FCA rules. This is to take effect this year. The FCA itself in March 2022 published a notice to FCA-regulated organisations with cryptoasset exposure, acknowledging that while cryptoassets and related technologies can be of benefit to financial services firms, they also present a number of risks. These risks include to market integrity and consumers, as well as in relation to financial crime and money laundering.
Until further rules are introduced, however, it seems as though the ASA is taking a stronger stance on misleading and confusing advertising by crypto companies in order to protect consumers.