On 8 October 2023 the FCA took over the regulation of ads for ‘qualifying cryptoassets’ – cryptoassets that are transferable and fungible, including cryptocurrencies and utility (fan) tokens – and introduced new rules. However, cryptoassets as a product remain unregulated. As of this date, complaints about misleading non-broadcast advertising for qualifying cryptoassets will be referred to the FCA for their consideration. The new rules do not cover cryptoassets that are non-fungible, such as Non-Fungible Tokens (NFTs), or Limited Payment Tokens that can only be redeemed with the issuer and used for the payments of specific goods and services, such as non-monetary customer loyalty points, and the ASA will continue to regulate all ads for these products.
A promotion on Papa John’s website and in a Twitter post:
a. The website https://www.papajohns.co.uk/, seen in May 2021, stated “FREE BITCOIN WORTH £10” and “Save £15 when you spend £30 or more & get £10 worth of Bitcoin from Luno!”
b. The Twitter post on Papa John’s Twitter page, posted on 14 May 2021, stated “We’ve partnered with @LunoGlobal to offer FREE Bitcoin worth £10 for every pizza bought via our ‘£15 off when you spend £30’” and “TURN PIZZA INTO £10 WORTH OF BITCOIN”.
IssueThe ASA challenged whether ads (a) and (b) were irresponsible because they took advantage of consumers’ inexperience or credulity and trivialised investment in cryptocurrency.
Papa John’s GB Ltd said that they had a long running association with cryptocurrency, which dated back to May 2010 when it was believed that Bitcoin had been first used to buy two Papa John’s pizzas. They explained that each year on 23 May they commemorated #BitcoinPizzaDay. In that context, and when there was high customer interest in pizza and Bitcoin, they ran the promotion to raise awareness of the connection between cryptocurrency and pizza.
Papa John’s explained that a customer could use a promotional code to sign up for a Luno account that contained £10 worth of Bitcoin. Customers only opened the account if they chose to and were free to sell the Bitcoin and close the account at any time. There was no obligation to trade or make a transaction in the Luno account to get the free amount.
Papa John’s said that the ads made no comment on investing in Bitcoin and the promotion only offered a mechanism for customers to get free Bitcoin. They likened the promotion to a discount on products or a cashback offer, the only difference being that the saving was paid in Bitcoin.
They stated that there were no hidden surprises or processes with the offer and the sign-up procedure was made clear through the Luno account set up. Papa John’s had also purposefully required a customer to opt in for any further marketing correspondence from Luno.
Papa John’s acknowledged that some customers would have more knowledge of cryptocurrency than others. However, due to their historic connection to Bitcoin, they believed their partnership with Luno would not be seen as unusual and the collaboration alone did not make any comment on cryptocurrency or its suitability for investment. The promotion only reflected the specific interest in pizza and Bitcoin, at that time of year, and offered free Bitcoin as part of that. They believed that was entirely different from a scenario where a consumer was given the opportunity to invest their own money in a financial product.
Papa John’s confirmed the ads had already been removed.
The ASA understood that the promotion offered free Bitcoin as a result of spending more than £30 at Papa John’s. We understood that consumers then had the option to cash out at any time and that there was no obligation to trade further or to invest any of their own money. Nevertheless as part of the promotion a consumer would have to set up an account with Luno, a cryptocurrency exchange, which gave consumers the option to trade in cryptocurrencies either with the promotional amount of Bitcoin or their own money.
We acknowledged that Papa John’s had a historical relationship with cryptocurrency and therefore some consumers may have been aware of the link between the company and Bitcoin. However, the ads were addressed to a general audience and we considered that most of those who engaged in a promotion linked to buying pizza were likely to be inexperienced in their understanding of cryptocurrencies and the risks inherent in doing so. We further noted that the ads contained no risk warnings about cryptocurrency.
We understood that cryptocurrency was a complex and sophisticated investment, subject to frequent change in value and one that could potentially lead to large losses. It was also not regulated by financial authorities or subject to the protections afforded by the Financial Services Compensation Scheme. We considered the decision to open a cryptocurrency exchange account, with the potential to invest in such a financial product, was one that required careful thought and consideration. However, we considered the use of pizza to promote a cryptocurrency account, encouraged consumers to engage in such 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, we concluded they were irresponsible and breached the Code.
The promotion breached CAP Code (Edition 12) rules 1.3 (Social responsibility), and 14.1 (Financial products).
The ads must not appear again in the form complained about. We told Papa John’s GB Ltd to ensure they did not irresponsibly take advantage of consumers’ lack of experience or credulity and trivialise investment in cryptocurrency with their promotions.