Cryptocurrencies or cryptoassets are tokens that are not ‘specified investments’ or e-money, and can be traded, which includes well-known tokens such as Bitcoin, Ether or Ripple.
- What is a cryptocurrency?
A cryptocurrency is a digital currency in which encryption techniques are used to regulate how many units of currency are available. They use methods such as “blockchain” to verify the transfer of funds, whilst operating independently of a central bank. The most well-known cryptocurrency is Bitcoin along with Ethereum, Ripple, Bitcoin Cash, Litecoin, and EOS, but there are now over 1,500 in existence.
Not only are there adverts for the cryptocurrencies themselves, but some are for investments which link to cryptocurrencies.
- Make clear that they are unregulated
Cryptoassets, such as cryptocurrencies are not regulated. However, where cryptocurrencies are traded on existing regulated platforms, such as Contract for Difference (CFDs), they fall under the FCA’s (Financial Conduct Authority) remit. The FCA announced that due to their complexities and volatility, the sale of regulated products such as any derivatives (for example, CFDs, options and futures) that reference certain types of cryptoassets are banned to retail consumers.
However, some platforms, such as cryptocurrency exchanges, are outside of the FCA’s remit, and such cryptocurrencies and assets are not regulated financial products even if they are presented as such. This also means that there is no investor protection, including that provided by the Financial Services Compensation Scheme or the Financial Ombudsman Service.
In 2022 the government plans to strengthen the rules on cryptoasset advertisements and protect consumers from misleading claims, to bring them into line with other financial advertising, ensuring they are fair and clear.
Advertisers must clearly state that cryptocurrency is not regulated, so that potential investors are aware that they would not be subject to protections afforded by either the Financial Ombudsman Service or the Financial Services Compensation Scheme. In 2021 the Advertising Standards Authority (ASA) investigated multiple ads for cryptocurrencies which did not make it clear that the product was not regulated in the UK, and ruled that these ads should have included a statement which made this clear. (Skrill Ltd, 15 December 2021/ Luno Money Ltd t/a Luno, 15 December 2021/ Exmo Exchange Ltd, 15 December 2021/ CoinBurp Ltd, 15 December 2021/ Coinbase Europe Ltd t/a Coinbase, 15 December 2021/ eToro (UK) Ltd, 15 December 2021).
Advertisers must make sure that this statement is presented in a sufficiently clear and prominent way, ensuring that it can be seen by consumers. In 2021, the ASA investigated a digital poster for an online cryptocurrency exchange, which included a disclaimer which referred to cryptocurrencies being unregulated activities in the United Kingdom. However, as the risk warning only ran for one second at the beginning of a 20-second ad, the ASA considered that the presentation and brevity of the disclaimer, would not give consumers necessary time to comprehend the disclaimer in full (Payward Ltd t/a Kraken, 15 December 2021).
- Do not take advantage of consumer’ inexperience or credulity
Advertising rules state that financial products must be set out in a way that allows them to be understood easily by the audience being addressed. Therefore, marketers should think about where an ad is to be placed and the terminology that is used. For example, if an ad is placed in a specialist financial publication, then more technical jargon may be able to be used, than if an ad is placed in an untargeted medium such as an outdoor poster. As these are fairly new, and are unique, a lot of the terminology will be new to the majority of consumers and could well be confusing and therefore potentially misleading.
In 2019, the ASA received complaints about a press ad for investing in cryptocurrency and focused on the value of Bitcoin as the complainants felt the ad failed to illustrate the risk. The ASA told the advertiser to ensure that financial information in their ads was set out in a way that allowed it to be readily understood by the audience being addressed and that the risks of investments were sufficiently clearly signposted (HDR Global Trading, 14 August 2019).
The ASA investigated an ad for a promotion which offered free Bitcoin with the purchase of pizza, which required participants to open a trading account. The ASA considered the use of pizza to promote a cryptocurrency account, encouraged consumers to engage in a high-risk investment without consideration and trivialised what was a serious and potentially costly financial decision, especially in the context of the intended audience who were likely to have limited knowledge of cryptocurrency. Therefore because the ads took advantage of consumers’ inexperience or credulity and trivialised investment in cryptocurrency, the ASA concluded that they were irresponsible and breached the Code (Papa John’s (GB) Ltd t/a Papa John’s Pizza, 15 December 2021).
The ASA has ruled against multiple ads which did not make clear that Capital Gains Tax (CGT) had to be paid on profits from investing in cryptoassets, once allowances were exceeded. In these cases, the ASA considered that, by not making clear that CGT could be payable on profits from investing, the ads took advantage of consumers’ inexperience or credulity (eToro (UK) Ltd, 15 December 2021/ Arsenal Football Club plc, 22 December 2021/ Exmo Exchange Ltd, 15 December 2021/ Luno Money Ltd t/a Luno, 15 December 2021 / Payward Ltd t/a Kraken, 15 December 2021 / CoinBurp Ltd, 15 December 2021/ Coinbase Europe Ltd t/a Coinbase, 15 December 2021/ Forisgfs UK Ltd t/a Crypto.com, 5 January 2022).
- Include all material information
As well as the rules in Section 14 of the Committee of Advertising Practice (CAP) Code, other sections of the Code will be relevant. Advertising rules ensures ads are not considered misleading.
In line with advertising rules, ads must not mislead consumers by omitting material information.
An ad for ‘Fan Tokens’ did not mention that Fan Tokens were a cryptoasset or that to buy them you had to first purchase another cryptocurrency. Therefore, the ASA considered consumers were unlikely to understand that the ad referred to cryptoassets. As the ad did not include material information that Fan Tokens were a cryptoasset that had to be exchanged with another cryptocurrency, the ASA concluded the ad was misleading (Arsenal Football Club plc, 22 December 2021).
- Make clear that value can go down as well as up
Cryptocurrencies (and investments linked to their performance) can be extremely volatile which means they are vulnerable to dramatic changes, so whilst they may go up significantly in value, they could also severely drop meaning a loss of capital.
Advertising rules state that ads must make clear that the value of investments is variable and, unless guaranteed, can go down as well as up.
The ASA has investigated multiple ads for cryptocurrencies that did not state that investments were variable and that they may go down in value as well as up, and told the advertisers to ensure that their ads included a statement which made this sufficiently clear (Skrill Ltd, 15 December 2021/ Luno Money Ltd t/a Luno, 15 December 2021/ Exmo Exchange Ltd, 15 December 2021/ CoinBurp Ltd, 15 December 2021/ Coinbase Europe Ltd t/a Coinbase, 15 December 2021/ eToro (UK) Ltd, 15 December 2021/ Payward Ltd t/a Kraken, 15 December 2021/ Arsenal Football Club plc, 22 December 2021).
- State the basis used to calculate any projections or forecasts
Sometimes ads will state forecasts or projections for returns consumers may be able to achieve. Advertising rules state that the basis used to calculate any rate of interest, forecast or projection must be apparent immediately.
In 2021 the ASA challenged if the claim “Earn up to 8.5%” in an ad was misleading and could be substantiated. The ASA considered that the ad did not make clear that the rate of return depended on the type of cryptocurrency, the amount transferred, or the period held and had not seen any evidence to substantiate that 8.5% per year would be paid. The ASA told the advertiser to ensure that the basis of any projection in their ads was made clear and that they held adequate substantiation to support their claims (Forisgfs UK Ltd t/a Crypto.com, 5 January 2022).
- Make clear that past performance is not a guide for future performance
Advertising rules state that ads should make clear that past performance or experience does not necessarily give a guide for the future.
The ASA investigated an ad which stated ‘…£5 in #Bitcoin in 2010 would be worth over £100,000 in January 2021. Don’t miss out on the next decade…’, and considered that this claim used the past performance of Bitcoin to encourage consumers to use the service. Because the ad did not make clear that past performance or experience did not necessarily give a guide for the future, the ad was found to be misleading (Coinbase Europe Ltd t/a Coinbase, 15 December 2021).
Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the ASA. CAP’s AdviceOnline entries provide guidance on interpreting the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing.
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