ASIC has commenced a surveillance into the marketing of managed funds, to identify the use of misleading performance and risk representations in promotional material.

ASIC is scrutinising traditional and digital media marketing of funds, including search engine advertising, targeting retail investors and potentially unsophisticated wholesale investors, such as some retirees.

ASIC is concerned that, in the current highly volatile and low-yield environment, consumers seeking reliable or high returns are being misled about the performance and risks of the funds they are investing in. This surveillance follows on from ASIC’s ‘True to Label’ initiative, which examined whether representations in fund labels may have misled consumers about the funds’ characteristics and underlying assets.

‘ASIC has broadened our managed fund surveillance, as retail and unsophisticated investors continue to grapple with historically low yields alongside the outlook of even greater global risks and uncertainties,’ ASIC Deputy Chair Karen Chester said.

‘ASIC remains concerned that managed fund promoters continue to target consumers, particularly retirees or those planning for retirement, with ambiguous or misleading performance and risk representations. Where we identify fund marketing of concern, we will also review the corresponding product disclosure statements, websites and target market determinations to assess if the marketing claims are misleading,’ Ms Chester said. 

‘ASIC is committed to protecting consumers where misleading marketing practices run counter to their interests. If we identify misleading conduct, we will take prompt action to disrupt behaviours by deploying across our regulatory tools – from administrative intervention through to enforcement action if warranted,’ she said.

Background

ASIC’s Regulatory Guide 234 Advertising financial products and services (including credit): Good practice guidance (RG 234) assists fund managers and others in the industry comply with their legal obligations not to make false or misleading statements or engage in misleading or deceptive conduct. Promoters of managed funds should ensure they are familiar with the principles and guidance set out in RG 234, including:

• Marketing must give balanced messages about returns, features, benefits and significant risks.
• Risk disclosure needs to be clear and prominent. 
• The safety, reliability or security of an investment should not be overstated.
• Comparisons with other products or benchmarks must be appropriate and reasonable.
• Any reliance on past performance must explain that it is not indicative of future performance.
• Care must be taken with the use of images, graphs and tables to ensure they are not confusing or misleading.
• The physical limitations of a medium is no excuse for misleading marketing.

In addition, Regulatory Guide 53 The use of past performance in promotional material (RG 53) provides general guidance to the financial services industry on the appropriate use of past performance information.

ASIC has recently taken enforcement action against fund managers for misleading or false advertising, including the Mayfair 101 Group (21-364MR), La Trobe Financial Asset Management (21-319MR) and the Skyring Fixed Income Fund (20-294MR). Information Sheet 151 describes ASIC’s approach to enforcement (INFO 151).