16 Aug 22
On 10 August, the ASA confirmed that its ruling against Arsenal Football Club regarding the club’s advert for fan token partner, Socios, had been upheld following independent review. This note summarises the decision and some key points for clubs and other sporting bodies to consider when promoting sponsors, particularly those involved in the crypto market.
The adverts and the issue
The complaint centred on a Facebook post made by Arsenal on 12 August 2021 and a page published on the club’s website on 6 August 2021. These adverts were challenged on the basis that they were misleading because they failed to properly illustrate the risk of the investment, and irresponsible because they took advantage of consumers’ inexperience or credulity and trivialised the risks of engaging with and investing in cryptoassets. The Facebook post was additionally misleading because it did not make clear that the tokens were cryptoassets, which could only be obtained by opening a cryptoassets exchange account and purchasing another cryptocurrency. All claims were upheld by the ASA.
Arsenal’s response to claims
In response to claims that the adverts were misleading, Arsenal argued that they had not promoted the fan tokens as tradable nor that they could be used for capital gain. Therefore, there was no need to include warnings commensurate to these risks. Arsenal also pointed out that there was a difference between the free tokens, which are not paid for and cannot be traded, and the usual paid-for and traded tokens. Arsenal argued that its adverts, and particularly the Facebook post, were directed at promoting the free tokens merely as a tool for fan engagement and not as an investment, although it did admit that the paid-for tokens may be seen as investments by some.
Despite not being required to do so, and in an effort to be responsible, Arsenal had chosen to include warnings on the website to seek financial advice and that the value of tokens could change. They argued that the presence of such warnings should have made fans aware of the risks as this website page was published prior to other advertisements. In addition, the purpose of the Facebook post was not to encourage investment, but to demonstrate the uses of the fan tokens, so there was no need to include a further warning.
Arsenal also argued that it believed that Socios was well known in the footballing community, and that the relationship was widely understood by the target audience. The website set out the risks and the Facebook post was one of a series of advertisements that formed part of a whole fan engagement programme which made clear both the risks inherent in purchasing crypto assets and that the purchase of crypto currency was required to buy fan tokens. Based on this and wider public understanding of crypto assets, Arsenal believed that the information provided in the adverts was clear and understandable.
The CAP Code requires that marketing communications for investments make clear that the value of investments is variable and, unless guaranteed, could go down as well as up. It also requires that significant limitations and qualifications be stated and presented clearly. The ASA understood that the paid-for tokens were a cryptoasset and can be used as an investment, even if they are not directly marketed as generating a return. The ASA also highlighted that crypto assets are a volatile market and subject to frequent change which could potentially lead to large losses.
The distinction between the free and paid-for tokens was acknowledged by the ASA but it disagreed that any of the adverts were solely promoting the free tokens. This was because each advert formed part of the same campaign and so they should be contextualised within a series of posts promoting the paid-for tokens. In particular, the Facebook post was posted on the same date as the paid-for tokens were launched and did not mention the free coin expressly, so could not be distinguished in this way. Therefore, all adverts were seen as promoting investments.
The ASA also disagreed with Arsenal’s assessment of the level of knowledge of the target audience. It held that the adverts were likely to have been seen by a general audience with limited financial knowledge and experience of cryptoassets as they appeared on Arsenal’s general website and Facebook page. Whilst there were multiple posts, there was no guarantee that any user will have seen them all. As such, a user may see the Facebook post but not the website and therefore have no warning of the risks regarding the paid-for tokens.
On this basis, the adverts were misleading as they failed to make users aware that the fan tokens were cryptoassets which are unregulated in the UK and whose value may decrease as well as increase. Further, the warnings on the website were not prominent enough to be sufficient.
Arsenal’s response to claims
Arsenal’s response included in-depth reasoning setting out that it did not promote the fan tokens as cryptocurrency investments or as a way to make money generally, and therefore it was not required to include warnings regarding the potential tax implications on trading of the tokens. Arsenal explained that it had consistently promoted the tokens solely as a way for fans to engage with the club and that they were therefore materially different from cryptocurrencies and any other specified investments under the Financial Services and Markets Act 2000. Arsenal relied heavily on the existence of free non-tradeable tokens in making this argument. Whilst the club acknowledged that the paid-for, tradeable tokens may be considered an investment, they argued that the adverts only promoted the free tokens and did not promote them as a financial investment, meaning there was no requirement to include information on any potential tax implications of the trading. There was nothing in either the FCA’s or the ASA’s codes that required such warnings. Arsenal argued that to require such warnings would impose a higher standard on unregulated investments than those required of regulated investments. Further, such inclusion actually risked misleading consumers where the adverts only referred to free tokens as it may lead them to think they could trade the tokens when this functionality was not available.
The ASA set out clearly that it would treat paid-for fan tokens and other utility tokens as cryptoassets and a form of investment, regardless of how they are promoted in practice. As noted above, the ASA did acknowledge that the free and paid-for tokens differed in some respects but held that both required a level of complex activity. To gain access to a free fan token, Arsenal members would still be required to open a Socios account which opened the possibility of buying and trading more tokens in the future. The ASA views such assets and their trading as a complex and sophisticated investment which could be subject to serious losses.
The ASA did acknowledge that there is no current regulatory basis for including information on possible tax implications of investments in cryptoassets. However, as the fan tokens are not actually subject to FCA regulation, the FCA’s financial promotion rules do not apply. The ASA therefore instead considered the knowledge of consumers and concluded that they would be far less likely to be familiar with the tax implications of cryptoassets in comparison to long established FCA regulated investments such as ISAs or shares.
Therefore, the ASA concluded that because the adverts trivialised investment in cryptoassets and took advantage of consumers’ inexperience or credulity by not making the tax implications clear, the adverts were irresponsible and breached the Code.
The adverts must not appear again in the form complained about and future advertisements must make clear that the value of the fan-tokens is variable and that cryptoassets are unregulated. All material information and appropriate and prominent warnings must also be included.
Key points to note:
- This is a reminder that crypto is still a new area and regulations are constantly evolving. Clubs and other sporting bodies need to remain alive to the changing landscape. Even where there may not be direct regulation, the CAP Code contains a number of provisions which will require consideration beyond the letter of the law, such as the requirement to act with a sense of responsibility to consumers and to society.
- This complaint was made and upheld directly against Arsenal, as the advertiser, and not against Socios, even though the adverts primarily promoted the partner. Clubs need to ensure that they themselves comply with advertising requirements and they cannot simply rely on statements made by their partners regarding their products and services.
- Fan tokens, and similar utility tokens, may not be regulated financial assets but they are cryptoassets and the ASA will treat them as investments regardless of how they are promoted. This means that appropriate and prominent warnings must be included.
- What is appropriate is not necessarily expressly laid out in any regulations and must take account of the knowledge of the audience. At the current time, it is probably wise to assume a low level of experience and understanding in the general populace as to the complexities of purchasing and trading cryptoassets. This is particularly the case where a club or other sporting body is putting out advertising on its own networks, rather than on those of its crypto partner.
- It is not sufficient to rely on providing warnings once when running a campaign. Sufficient warnings must be repeated in all adverts concerning cryptoassets. The ASA did not comment on whether additional information could be provided via a link, but it is clear that it requires warnings to consistently be present.
- There was only one complaint about the adverts that gave rise to this decision and the subsequent wide press coverage that followed. Clubs need to ensure that every communication complies with all regulations, as limited circulation does not necessarily negate risk.
Link to the full ASA decision can be found here.