Financial Choice Pty Ltd (Financial Choice), an Australian financial services provider, has paid two ASIC infringement notice penalties totalling $21,600, after making misleading representations in marketing emails sent to consumers and on its website.
The first infringement notice related to a representation made by Financial Choice in bulk emails the company sent to around 215,000 consumers in 2016. The emails falsely stated that Financial Choice had been asked by the consumer’s superannuation fund to conduct a survey about their superannuation.
The second infringement notice related to misleading representations on the website findmysuper.com.au, which is operated by Financial Choice. ASIC considered that those representations would lead consumers to believe that they needed to use Financial Choice’s services to:
- find their lost superannuation for free; and
- maintain contact with their superannuation fund while overseas.
The representations were false and misleading given the other ways consumers can search for lost superannuation (including the free service offered by the Australian Taxation Office), and maintain contact with their superannuation fund.
As a result of ASIC’s concerns, Financial Choice has:
- agreed to stop sending communications that state or imply that Financial Choice is seeking consumers’ opinions because superannuation funds have asked it to do so; and
- removed the misleading statements from the Find My Super website.
ASIC Deputy Chair Peter Kell said, 'Consumers can be heavily influenced by promotional materials published by financial services providers. For this reason, ASIC will continue to take action where we believe those materials are misleading. Firms must ensure their marketing materials and promotional statements are based on fact.'
Under the ASIC Act, a person involved in the supply or promotion of financial services must not make false or misleading representations:
- that services have sponsorship, approval, performance characteristics, uses or benefits (s 12DB(1)(e));
- that the person making the representation has a sponsorship, approval or affiliation (s 12DB(1)(f)); or
- concerning the need for any services (s 12DB(1)(h)).
The payment of an infringement notice is not an admission of a contravention of the ASIC Act consumer protection provisions.
ASIC can issue an infringement notice where it has reasonable grounds to believe a person has contravened certain consumer protection laws.
ASIC has taken action for false and misleading online-representations against other entities. Recent examples include:
- 17-175MR Synergy Financial Markets Pty Ltd pays $10,800 penalty for misleading advertising
- 16-343MR Findex Group Limited and Financial Index Australia Pty Ltd pay $21,600 in penalties
- 16-324MR LT Management pays infringement notice in relation to free SMSF set-up claims
- 16-266MR R S Capital Partners Pty Ltd pays infringement notice following 'free SMSF set up' claims
- 16-203MR Kovacs Property Group pays penalty for misleading advertising
- 16-080MR Port Phillip Publishing pays $21,600 penalty for misleading superannuation scare campaign
- 15-361MR InsuranceLine penalised for misleading advertising