THIS RULING REPLACES THAT PUBLISHED ON 17 OCTOBER 2018. THE DECISION ON POINT 3 HAS BEEN REVERSED, MAKING THE COMPLAINT NOT UPHELD.
A letter for Smart Pension Ltd, received on 28 November 2017, was headed “GET COMPLIANT IN MINUTES”. The letter was headed “Failing to set up your workplace pension now could soon blow a serious hole in company finances”. The body of the letter included two paragraphs of information about workplace pensions. Below that, a box included the complainant’s company name and text that stated “Is your deadline just days away? ... With Smart Pension, it takes just minutes to set up for free. Turn over to find out how”. Below that, the letter included body text which stated “Why Smart Pension? Our platform is the fastest, simplest and most secure workplace pension on the market”.
The complainant challenged whether the ad:
1. was obviously identifiable as a marketing communication;
2. misleadingly suggested it was an official communication, when that was not the case; and
3. was likely to cause undue distress, because they believed that the tone of the ad was threatening.
1. & 2. Smart Pension Ltd said that the letter had been prepared following a previous ASA ruling against their advertising. They provided a copy of the envelope in which the ad would have been sent. It featured large text that stated “New regulations - marketing communication from Smart Pension Ltd” and Smart Pension’s logo and its corporate name on the front of the envelope.
Smart Pension said that its communications were targeted at businesses with employees, and they considered that those recipients would be sophisticated individuals who would be likely to recognise the difference between their own correspondence and correspondence from official organisations. They said that the Automatic Enrolment and Legal & General Logos were included following the previous ASA ruling.
3. Smart Pension said that they did not consider that recipients, being business owners, would be caused undue distress by the ad.
They said that the call to action in the letter and the references to potential sanctions from the Pensions Regulator were the reality of the situation and that it was therefore not wrong to inform business owners of that. They provided examples of times where the regulator had pursued sanctions, including fines and criminal proceedings, against businesses that had failed to comply with the regulations. They said that the wording of the letter and insert reflected the reality of the regulations around pensions and was justified in the context of the regulatory climate in the relevant sector which they stated was different to other regulators and emphasised enforcement and a strict attitude to non-compliance.
Smart Pension explained that the ads had been targeted to new businesses and had been sent after new auto-enrolment obligations that had come into effect in October 2017, so they considered that potential penalty for not enrolling was relevant information. Additionally they considered that the ad mainly focused on the positives that Smart Pension was offering. Preventing them from informing businesses about the statutory deadline could have the potential to cause harm.
1. & 2. Not upheld
The ASA understood that the letter was posted in an envelope that featured prominent text which stated “www.AutoEnrolment.co.uk New rules apply to all UK employers” above the delivery address and “New regulations - marketing communication from Smart Pension Ltd” below the delivery address, as well as featuring the Smart Pension and Automatic Enrolment logos. Although the first piece of text recipients were likely to read was “New rules apply to all UK employers”, we considered that the text “marketing communication from Smart Pension Ltd” held equal prominence.
The letter featured the Smart Pension logo and branding in the top right corner and the letter did not contain any official government or similar organisation logos. Although the initial two paragraphs of the letter related to regulatory issues, we considered that the second half of the letter (opening with the sub-heading “Why Smart Pension?”) made clear that the aim of the letter was to advertise Smart Pension’s services.
Taken as a whole, including the content of the letter and the envelope, we considered that the letter was identifiable as a marketing communication and that, although it did mention regulatory matters, it would not be understood by the average consumer to be an official communication. We therefore concluded that on those points, the ad was not misleading.
On points 1 and 2, we investigated the ad under CAP Code (Edition 12) rules 2.1 and 2.3 (Recognition of marketing communications), and 3.1 (Misleading advertising), but did not find it in breach.
3. Not upheld
We acknowledged that companies that did not set up a workplace pension for their employees could be subject to fines or legal action by the Pensions Regulator and that such action had been taken in the past. We noted that the statements referring to that in the ad were therefore accurate, and that they were set in the context of the ad as whole, which we considered focused on the merits of Smart Pensions’ product, its ease of use and how to use it.
We understood the ad was targeted at new businesses and delivered close to the deadline for auto-enrolment. Because we considered (as referenced at Points 1 and 2) that businesses were unlikely to be misled about the nature of the ad, we considered that businesses that had already enrolled their staff into a pension scheme were unlikely to be caused distress by the references to the sanctions for failing to enrol staff.
We considered that distress may have been caused to some recipients whose businesses had not, at that stage, enrolled their staff into a pension scheme. However, because it was a legal requirement for businesses to enrol their employees into a pension and the consequences of failing to do so could result in the sanctions outlined in the ad, we considered that such distress was not unjustified.
We therefore concluded that the ad was unlikely to cause distress to recipients without justifiable reason.
On this point we investigated the ad under CAP Code (Edition 12) rule 4.2 (Harm and offence), but did not find it in breach.
No further action necessary.