ASIC has taken action against H.E.S.T. Australia Limited (HESTA), the trustee of HESTA superannuation fund, for alleged false or misleading statements made in their marketing material.

HESTA paid $48,600 to comply with three infringement notices issued by ASIC regarding alleged false or misleading statements about its ‘Balanced Growth’ superannuation investment option. The statements referenced 10-year performance figures of the Balanced Growth option but did not note the period the figures related to.

ASIC alleges these statements may have misled consumers into believing the performance figures used were up to the present day, when the 10-year period used by HESTA to calculate those figures had ended between five and 14 months prior to publication.

ASIC was concerned that the past performance figures advertised by HESTA were higher than the more recent performance figures available during the period of publication.

ASIC Deputy Chair Sarah Court said, ‘ASIC was concerned that these figures were misleading because consumers were not given all the necessary information and might have assumed the fund was performing better than it was.

‘Funds commonly focus on performance in their advertising and promotional material. Advertising involving performance figures needs to be clear and transparent about how those figures are calculated. This allows consumers to make informed decisions, including choosing or moving between funds.

‘For many Australians, superannuation is the biggest investment decision of their life and it is a decision that must be based on accurate information,’ concluded Ms Court.

The Balanced Growth performance figures appeared in HESTA Facebook and Instagram advertisements and in a webinar published on the HESTA website. These were published at various times between 23 August 2022 and 18 July 2023.

The infringement notices were issued in relation to statements contained in three communications made by HESTA. ASIC was concerned that:

• Between 23 August 2022 and 21 October 2022, HESTA published an advertisement on Facebook and Instagram stating the Balanced Growth option “has returned 8.87% average returns p.a. over the past 10 years”. The date range was not provided in the advertisement. The average return for the 10-year period to the time of the advertisements was between 8.01% and 8.51%.
• Between 21 October 2022 and 20 June 2023, HESTA published an advertisement on Facebook and Instagram stating the Balanced Growth option “has returned 8.53% average returns p.a. over the past 10 years”. The date range was not provided in the advertisement. The average return for the 10-year period to the time of the advertisements was between 7.87% and 8.23%.
• Between 9 December 2022 and 18 July 2023, HESTA published a webinar on its website regarding market volatility representing that a hypothetical consumer would have realised a net return of approximately $67,000 on a $50,000 investment by staying in the Balanced Growth option for 10 years “right up to today”, which was incorrect.

Payment of an infringement notice is not an admission of liability.

The specific reasons for ASIC’s concerns are set out in the three infringement notices which have been published on the Credit and ASIC Act infringements notices register.

Background

ASIC identified the statements which are the subject of the infringement notices from our review of superannuation fund advertising. In 2022, ASIC reviewed 7,408 advertisements across print media, television, radio, digital and social media, including across platforms such as Facebook, Instagram and Tiktok.

ASIC’s Regulatory Guide 53 (RG 53) provides general guidance to the financial services industry on the appropriate use of past performance information in promotional material.