Part I: Is your marketing material promoting your business, or trashing it?

Tuesday, 5 April 2016 | By Andrew Ham
This is the first part of a blog series about the ways to keep your marketing material from being misleading or deceptive.  Read the second and third blog here. 

10 tips to keep your marketing material from being misleading or deceptive

Whether your business is financial services, credit services or anything else, you are responsible for the content of the material that you publish, or otherwise issue, into the public arena.  In this article we set out ten tips to keep your marketing material from being misleading or deceptive. 

This marketing material might be the content of your website, brochures, print or electronic media advertising, BDM presentations, call centre scripting, or direct mail campaigns.  It also includes advertising on social media.  The same considerations also apply to regulated disclosure documents such as your financial services or credit guide, and product disclosure statements.  

While the chief compliance consideration to keep in mind is to avoid engaging in misleading or deceptive conduct, other important considerations include the rules regarding copyright and defamation.  

You may not think that misleading and deceptive conduct is “a big deal”, yet in the latest public figures available (for the first half of 2015), 21% of ASIC’s enforcement outcomes in the financial sector related to dishonest, unconscionable or misleading activity.  

You may not think anyone will notice your humble little website, yet the internet reaches into almost every home and office.  Also, ASIC has recently been focussing on social media advertising (such as Facebook and YouTube).  In addition to its own surveillance, ASIC compiles market intelligence from complaints it receives, breach reports, and even other ASIC filings (such as financial statements).

ASIC Chairman, Greg Medcraft, has also noted that ASIC’s current focus on compliance culture potentially links administrative registry data such as identifying licensees that routinely file financial statements late, with its assessment of the regulatory risk posed by that licensee.

Be organised – and stay that way

Most businesses have a marketing strategy that utilises themes or a “look and feel” that sets that business apart in the market place.  This might include branding, colours, font colours and styles, and layout.  It often also includes standard text describing the company, its products and their benefits.

Tip 1:

Develop a library of templates with pre-approved standard text and layout to ensure consistency and minimise the work required when issuing a new document.
You may also be able to establish a suite of disclaimers for various kinds of marketing material with instructions about when each is required.

Tip 2:

Make sure you have a process for keeping standard marketing material such as brochures and your website accurate and up-to-date.  This might include subscription to a regulatory update service to ensure you find out about relevant changes in the law; change management processes to ensure your marketing materials are reviewed as part of all business changes (e.g. new product offerings), as well as periodic reviews diarised in a compliance calendar; limits on who has authority to make changes; and a change register to record every change made to the website or document, and the approvals obtained.

Know your product.  Don’t guess!

Many sales teams are geographically dispersed, talking about your product in print, on the phone, in presentations and in meetings.  You may have distribution networks whereby other businesses are also talking about your product, making representations to clients.  In the financial services and credit regulatory frameworks, what is being said about your product in all these channels is likely to be your responsibility.  The prohibition on engaging in misleading or deceptive conduct is not limited to intentional behaviour.  How do you make sure everyone is on message?

Tip 3:

Identify the product expert (or ‘champion’) in your organisation and make sure your product expert approves all training, marketing and other materials that mention the product.

Tip 4:

Make sure all sales staff, including third party channels, receive product training as part of the product launch, and that this training is supported by reference materials and refreshed whenever there are product changes.  Follow up the training with a monitoring and supervision program that fits your business model.

Please do not hesitate to contact any of our commercial lawyers if you would like to discuss your marketing material and how to ensure it is promoting, not trashing, your business.

Author: Andrew Ham

Stay tuned for our next blog, which will discuss warnings, disclaimers and qualifications, words to avoid, and misleading and deceptive conduct, coming soon from Holley Nethercote Commercial & Financial Services Lawyers. 

Keep an eye out for the launch of our new Sydney office on Martin Place in July 2016!!  We are very excited about this opportunity to service our Sydney clients.

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