To ensure guidelines are keeping pace with the latest developments in the advertising and marketing sector, ASIC has made updates to Regulatory Guide 234.
With a particular focus on AI-generated content, digital advertising and social media influencers, it’s imperative you and your marketing team understand what these changes mean in practice.
The Source Compliance team has put together a practical, 8-question checklist to review before you publish content, along with a helpful summary of the changes themselves. If you’re an Australian Financial Services or Australian Credit Licensee or hold authorisation from a licensee, this is essential reading.
What’s changed?
In June, ASIC made updates to Regulatory Guide 234, replacing the earlier “Good practice guidance” versions. The updated guide extends expressly to AI-generated content, short-form formats, digital advertising and social media influencers (finfluencers), all of which are subject to the same legal obligations as all other advertising.
RG 234 sets out guidance on how to comply with existing legal obligations not to mislead or deceive. It’s important to note that ASIC has indicated it may take a greater interest in advertisements that do not meet this guidance when considering whether to exercise its regulatory powers.
The Golden Rule
If it could mislead a reasonable person, do not publish it. This is an objective test – intention is irrelevant.
This applies to all promotional content – social media posts, emails, website copy, factsheets, podcasts, videos, banner ads, and AI-generated material. It does not apply to regulated disclosure documents (PDS, FSG, prospectus), which are governed by separate requirements. But ensure all promotional content is cross checked against current disclosure documents to ensure consistency.
Consider the following factors when creating promotional content:
a) Subject of the promotion (headline)
b) Content of the promotion (language use)
c) Format of the promotion (what does it look like)
d) Audience for the promotion (who could actually see the promotion)
e) Channel or platform used to communicate (where is it appearing?)
f) Overall likely effect of the promotion
Before you publish: Eight questions to ask and consider
| # | Question | If the answer is NO – stop and fix it before publishing |
| 1 | Does the promotion accurately and clearly describe the product and its features including costs, risks, fees, limitations? | Ensure there are no hidden fees, inaccurate discounts/price drops, omitted information, vague information, paid advertising as unbiased reviews – the promotion must be true to the product. |
| 2 | Does the complexity of the product prevent it from being advertised clearly on the chosen channel or platform and, if so, how can the complexity be addressed by the promoter? | Ensure risks are clearly described, plain language is used and disclaimers are prominent, or select a more suitable channel or platform that enables increased information. |
| 3 | Is every claim in this advertisement accurate and can we prove it? | Ensure you can substantiate every statement if challenged. |
| 4 | Are risks given sufficient prominence to benefits and returns? | Risk information must be clear, not hidden or difficult to understand, and the tone of the advertisement must not undermine the importance of the risks. |
| 5 | Is the content consistent with the current PDS or other disclosure document for this product or service? | Ensure there are no mismatches between advertising and the disclosure documents, which could result in your audience being misled or deceived. |
| 6 | Is the product subject to Design and Distribution Obligations (DDO)? If so, is the content consistent with the product’s Target Market Determination (TMD)? Does the advertisement either describe the target market for the product or specify where the TMD can be found e.g. hyperlink to TMD? | Do not describe a product as suitable for a broader audience than its TMD permits. Ensure distribution channels are within the intended target market.
Ensure a link is included to where the TMD can be found. |
| 7 | Who is the actual audience likely to see this promotion, and how may they differ from your intended target audience? | Regardless of your intended target audience, the actual audience must always be considered.
Ensure you consider the characteristics of the actual audience likely to see the promotion including their financial literacy, knowledge, demographics and vulnerability and whether it provides adequate information for ordinary and reasonable members of that audience. Special care must be taken when advertising high-risk or complex products, particularly if the audience may not easily understand the associated risks. |
| 8 | Has this gone through the required review and approval process? | Nothing goes out without sign-off – including AI-generated content, influencer posts, and user comments you decide to leave up on your own pages. |
The key updates you need to know
1. AI-generated content is in now included
Any content created using AI tools including drafts, social posts, and marketing copy is subject to exactly the same rules as human-written content. AI tools can generate inaccurate or biased content (“hallucinations”), which increases the risk of publishing something misleading.
What to do: Always have a human reviewer check AI-generated advertising before it goes out. Do not publish AI-generated content without a substantiation check.
2. Substantiating your claims
Claims made about consumer outcomes of products and services must be able to be substantiated, or otherwise have a reasonable or evidence-based justification. Promoters must keep records that can substantiate or justify any claims or representations made in advertising material including claims about returns, interest rates, fees and product features. Where claims about returns rely on comparisons, the facts underlying those comparisons must be verified and any relevant assumptions disclosed.
What to do: Build a checkpoint into your review and approval process to confirm that all claims are evidence-backed and that supporting records are retained on file before publication. Where claims rely on assumptions or modelling rather than direct evidence, ensure those assumptions are documented and capable of justification if challenged.
3. Expanded social media and short-form video guidelines
The guidance now expressly covers:
- Instagram Reels and TikTok videos
- Podcasts and music streaming platforms
- X (formerly Twitter), Reddit, and DiscordIn-app advertising in AI chat tools and push notifications through internet-based applications
What to do: Apply the same review process to short-form video and social content as you would to any other advertisement. Disclaimers in a video must be visible and on-screen long enough to be read. Do not allow short-term posts to contain outdated product features, costs or conditions.
Keep records of all social media advertisements published, including any disclaimers or warnings included, in case of any future dispute.
4. Finfluencers and influencer content
If your organisation works with social media influencers to promote products, you are responsible for that content even if you did not write it. ASIC has already issued warning notices to finfluencers promoting high-risk financial products with misleading claims.
What to do: Every piece of influencer content promoting your products must go through your advertising compliance review and approval before it is posted. Include this in any influencer agreement.
5. User comments on your pages
If a customer or third party posts a misleading comment on your own social media page or website and you become aware of it but leave it up, you become responsible for that content.
What to do: Monitor your social media pages regularly. Remove misleading third-party comments promptly once you are aware of them.
6. Specific greenwashing updates
RG 234 now includes a dedicated greenwashing section and refers to INFO 271 for additional guidance. You must take care to avoid misrepresenting the extent to which a financial product or investment strategy is environmentally friendly, sustainable or ethical.
What to do: Before publishing any ESG or sustainability claim, verify it against the product’s actual investment screens and holdings.
7. Past performance
The updated RG 234 consolidates updated past performance guidance (RG53 has been withdrawn):
- Do not use past performance information selectively, for example, by featuring a single well-performing fund where most other funds have performed below the sector median.
- Do not use past performance information from an inappropriate or irrelevant period, or use inconsistent time periods selected to show better performance.
- Always include a clear past performance warning in close proximity to the performance data, in the main body of the advertisement – not via a link, footnote or separate page. Acceptable wording includes: “Past performance is not a reliable indicator of future performance.”
- If using wholesale fund figures as a proxy for a retail fund’s longer-term history, clearly label those figures as non-actual, adjust them to reflect the fee differences between the wholesale and retail fund, and clearly separate them from any actual returns.
What to do: Update your internal marketing checklist and controls to remove reference to RG53.
8. Fees and costs
Where a fee or cost is referred to in an advertisement, it must give a realistic impression of the overall level of fees and costs a consumer is likely to pay, including investment, administrative and transaction fees.
Any exclusions or qualifications must be contained within the headline claim or be clearly and prominently noted.
The word “free” conveys a strong impression and must not be used where there is any charge to use the product. If you use phrases like “fee free,” “no fees,” or “low fees,” you must qualify the headline claim with necessary information about the way fees are applied.
What to do: Before publishing any product or service-related content ensure it goes through a review and approval process. When disclosure documents are updated, update controls and process documents.
9. Clarification on consistency with disclosure documents
The updated guide clarifies that product promotions should always be cross checked against current disclosure documents (PDS, FSG, Prospectus, credit guide). Failure to cross check creates a compliance risk.
What to do: Before publishing any product or service-related content ensure it goes through a review and approval process. When disclosure documents are updated, update controls and process documents.
10. Risk balance must be included in headline claims
Headline claims in digital banner promotions must be accompanied by the risk information in the same banner (the risk explanation cannot be on a separate linked page). The stronger the headline claim the more important it is for the risk information to appear in the banner.
What to do: Before publishing any product or service-related content ensure it goes through a review and approval process.
11. Third party logos
Advertising must not falsely represent that a product has an endorsement or approval it does not have. Take care when using branding or logos of third parties, even where permitted, as use may create a misleading impression of association, safety or institutional backing. In particular, do not claim ASIC has approved or endorsed your product. Do not reproduce the ASIC logo or other ASIC graphics without express approval from ASIC.
What to do: Before publishing any product or service-related content ensure it goes through an approval and review process. Ensure any third party logos and/or endorsements relating to your product have prior approval.
12. Complex products
Consider the complexity of the product against the medium of advertising. The more complex a product, the less likely it can be advertised in limited space without being misleading (e.g. internet banners, short radio or TV ads).
What to do: Before publishing any product or service-related content ensure it goes through a review and approval process.
13. ASIC enforcement powers and court enforceable undertakings
The new guide describes ASIC regulatory powers and examples of court enforceable undertakings for advertising failures across credit, investment, insurance, superannuation and digital asset sectors. Table 3 in Appendix 1 shows types of advertising offences mapped to penalties and other remedies.
What to do: Refer to Table 3 to get familiar with types of advertising which are subject to penalties, fines and imprisonment.
We’re here to help
If you need help demystifying your marketing compliance requirements or need some help reviewing promotional content, please get in touch.
