20 April 2023
Disclaimers and disclosures are critical in financial marketing to avoid fines, lawsuits, and suspensions, so it makes sense that they are a primary concern for our Financial Services clients with over 90% claiming they are concerned about them. FINRA reviewed over 65,000 advertisements and sales communications in 2021, and the FCA blocked over 8,500 adverts in 2022. The regulatory body ordered WealthPress pay over a million USD in consumer refunds for making false and deceiving claims in 2023. So, needless to say, disclaimers and disclosures in marketing are essential.
With strict regulations regarding the marketing of financial products, there is a wide range of (often complex and lengthy) disclaimers and disclosures to be used. The disclaimers and disclosures required also vary based on your local governing authority (e.g., the FCA in the UK, FINRA in the US, and the ACCC in Australia). Ensuring you are using the correct and most up-to-date regulatory language can be a challenge, particularly if they aren’t clearly documented and socialized within your organization.
As a starting point, here are the most common types of disclaimers required in advertising and blog content. These should be regularly updated and communicated to marketing by your legal or compliance team to ensure relevance and conformity.
General Past Performance
The general past performance disclaimer explains to investors that past performance is not indicative of how an investment will perform in the future. With this disclaimer, firms don’t promise misleading returns by emphasizing past successes.
Simulated Past Performance
Simulated past performance is when a firm details how it would have performed in a given market. By the FCA’s rules, simulated performance must be based on the performance of an actual investment or financial index that is the same as the performance you are simulating. You must also state that simulated past performance is not an indicator of future results.
Your disclaimer for investment risk should advise that the investor could lose money and the extent to which they could lose money. Consider also pointing investors toward other low-risk investment options so they’re aware that a high-risk investment isn’t their only choice.
The comparison rate disclaimer gives context to any comparisons you make to your competitors. It explains that prices and fees change, your comparisons are limited to certain examples, and exclusions apply, and it specifies the exact details upon which you are basing your comparison. The goal of a comparison rate disclaimer is to absolve you of any comparisons you’ve made to other competitors on your website.
Performance & Returns
The performance and returns disclaimer emphasizes that a positive performance or positive returns are not guaranteed.
A forecast disclaimer explains that the details stated are true as of the time that they were stated but that you are not claiming to be responsible for updating it according to policy and market changes.
General Advice Warning
A general advice warning explains to potential investors that the information presented does not account for their particular circumstances, such as financial needs or objectives. This disclaimer often recommends that investors seek financial or legal advice before investing.
The general finance disclaimer explains that the financial information on your website isn’t financial advice or a recommendation. Instead, the content is intended for informational purposes only, and users should seek professional advice before acting on it.
The confidential material disclaimer states that the enclosed material is only intended for the singular recipient and is not meant to be shared. It can protect the company in the event that the recipient shares confidential information with others.
The partnership disclaimer clearly states that the enclosed communications do not constitute a partnership. It makes the relationship between the communicating parties clear and absolves any doubt of connection.
Logos & Brand
The logos and brand disclaimer states that all logos and brand names belong to their respective owners and that they are shown on your website for identification purposes only. It also clarifies that showing these brands and logos is not an endorsement of these companies.
A copyright disclaimer claims your rights over the intellectual property, logos, and content on your website. It states that the rights over your copyrighted materials are protected in case any parties repurpose it in a way that isn’t to your liking.
The Rules Will Change, but There’s an Easy Way To Stay Compliant
In the UK, HMT and the FCA are currently reviewing their disclaimer and disclosure policies and discussing changes that could include a character limit for disclosures, formatting changes (what must come first in your disclaimer), and a change in flexibility in phrasing to address a target market. Similarly the SEC’s “New Marketing Rule” that came into enforcement late last year contains a section on enhancing existing disclosure requirements that investment advisors must abide by.
Ensure you are always using accurate and up to date disclosures and disclaimers with Red Marker.
Red Marker is custom trained AI-powered software that identifies risks in marketing assets, and automates compliance feedback for marketing, so there are significantly less amends and revisions between marketing and legal departments.
Click here to contact us if you’d like to schedule a 30-minute discovery call to discuss your marketing compliance processes and needs.