Summary of Council decision:
Two issues were investigated, both of which were Upheld.
A direct mailing, for workplace pensions, was received in June 2016 in an envelope that carried the text “Automatic enrolment - every employer will need to act - Important communication about new regulations www.AutoEnrolment.co.uk”. The ad also included logos labelled “Smart Pension” and “automatic enrolment”, as well as an ‘if undelivered’ address for Smart Pension in smaller text. The letter inside included a box at the top of the first page that stated “WARNING [recipient’s company name] may be subject to fines if you qualify and are non-compliant. Make sure you are aware of your deadline. Check your deadline with Smart Pension REGISTER NOW AT: www.AutoEnrolment.co.uk OR CALL US NOW ON: 0333 90 000 99”. Other text included “Smart Pension - a no fuss, zero cost Workplace Pension … With Smart Pension you won’t fall into the trap of many other businesses - 76% of which have reported extra admin and work … the UK’s fastest, most secure workplace pension platform … ‘Smart Pension is a fantastic company …’ Sign up now and get compliant … it’s the easiest way to avoid considerable government fines …”. The letter also included the “automatic enrolment” and “HM Government” logos.
The complainant challenged whether the ad:
1. was obviously identifiable as a marketing communication; and
2. misleadingly suggested it was an official communication, and that all companies needed to visit the website or call the number shown to ensure compliance, whereas that was not the case.
1. & 2. Smart Pension Ltd said the recent introduction of the workplace pension meant employers must provide a pension scheme and automatically enrol qualifying employees into it. Failure to do so by the relevant deadline could result in financial penalties and other criminal sanctions being imposed. Their company provided an auto enrolment platform that helped businesses comply.
They understood it was legitimate to entice recipients to open an envelope, provided they were not misled into doing so. Smart Pension believed it was clear from both the letter and envelope that the communication was a commercial one. It included their company logo, which was in a central location and more prominent in size than the official “automatic enrolment” logo. It also included their web address, which was the largest aspect of the envelope and clearly related to a commercial company because it ended in .co.uk, rather than .gov or .gov.uk. They believed consumers were aware, as a result of government communications and wider media coverage, that official government websites and email addresses ended in .gov or .gov.uk. They said their logo, web address and the automatic enrolment logo appeared together at the bottom of the envelope, but significantly more space was dedicated to their logo and web address than to the official logo. In addition, text on the front of the envelope (at the top) referred to “Smart Pension Limited”, which also made clear the commercial nature of the company. Also, there was no reference to a regulatory body, which they believed helped make clear the communication was not from government or a regulator.
Smart Pension said all wording on the envelope was factually accurate. It was necessary for them to refer to auto enrolment, because that was the reason for the communication. Their business was created specifically to respond to new government regulations around auto enrolment. The envelope also referred to new regulations because the current statutory requirements and associated sanctions were the result of new legislation. In addition, they said it was also important for the envelope to refer to employers having to act. While not all companies had to set up a workplace pension, for example, if they had no employees, they still needed to act even if just to register their exemption with the regulator. Smart Pension said that exemption was made prominently clear in the enclosed letter, in order to help clarify confusion in that area. The letter also made clear that signing up with Smart Pension was not compulsory, and included various references to them being a company along with, for example, their logo and commercial web address. They believed the envelope was not misleading, along with the mailing taken as a whole, in particular given that it was sent to businesses of a certain size rather than to individuals. They said the target audience was businesses with employees and believed such recipients were likely to be sophisticated and used to dealing with commercial correspondence.
They believed it would be clear to consumers that the envelope contained a marketing communication, and that this was also obvious when the letter was opened. In addition, Smart Pension believed it did not exaggerate the importance of the contents given that there was a genuine urgency in complying with the new regime and potentially serious consequences to not doing so. However, they said they were nevertheless prepared to make changes to the ad.
1. & 2. Upheld
The ASA acknowledged Smart Pension’s willingness to make changes to the ad. We noted their view that the letter made clear the mailing was a commercial communication, but considered that in order to avoid misleading it should be immediately clear to consumers if an envelope contained an ad, before opening it.
We noted the envelope included the text “Automatic enrolment - every employer will need to act” and “Important communication about new regulations”, as well as showing the official “automatic enrolment logo”. We understood Smart Pension had permission to use the official logo but disagreed with them that it was noticeably more prominent than their own logo. We also noted the presentation of the envelope was very similar to that we understood was used by The Pensions Regulator and considered the overall impression of the envelope was such that it contained official communication, and that it was therefore not obviously identifiable as an ad.
While we acknowledged that the envelope also included the advertiser’s logo, web address and company name (which included the text “Limited”), we considered those elements were not sufficient to counteract the misleading overall impression that the mailing contained an official communication. In particular, the advertiser’s web address www.AutoEnrolment.co.uk, used similar language to official references to “automatic enrolment”, including in the official logo also shown on the envelope. Consumers who were not familiar with Smart Pension might not appreciate that its logo did not also refer to an official body. Finally, we considered the reference to “Smart Pension Limited” was likely to be easily overlooked, in particular, given that it appeared only as part of a return address.
In that context, we considered the envelope also implied that all companies needed to visit the Smart Pension website, or call the number shown, to ensure compliance with pension regulations, whereas that was not the case because Smart Pension offered an optional commercial service. The text box at the top of the letter stated “WARNING [recipient’s company name] may be subject to fines if you qualify and are non-compliant - Make sure you are aware of your deadline. Check your deadline with Smart Pension - REGISTER NOW AT: www.AutoEnrolment.co.uk OR CALL US NOW ON: 0333 90 000 99”. We considered that was also likely to be understood in the same way, in particular because it was the most prominent aspect of the letter and likely to be noticed before recipients engaged with other aspects.
For the reasons given, we concluded that the ad was not obviously identifiable as an ad, that it misleadingly suggested it was an official communication, and that it also suggested all companies needed to visit the website or call the number shown to ensure compliance, whereas that was not the case.
The ad breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.3 2.3 Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context. (Recognition of marketing communications) and 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising).
The ad must not appear again in its current form. We told Smart Pension Ltd to ensure their future marketing communications were obviously identifiable as such and did not suggest, for example, by using language or presentations associated with government or other official bodies, that they were official communications. We also told them not to misleadingly suggest consumers needed to contact them to ensure compliance.