The Financial Conduct Authority (the "FCA") recently announced its "near-final" rules on financial promotions for cryptoassets. The FCA published its highly anticipated policy statement, "Financial promotion rules for cryptoassets" ("PS23/6"), alongside a guidance consultation ("GC23/1") in which the FCA is seeking feedback on proposed guidance to the new rules. Responses to GC23/1 are due by 10 August 2023.
Routes to promote cryptoassets
There will be four routes to legally communicating cryptoasset promotions to UK consumers, namely where the promotion is:
- communicated by an authorised person;
- approved by an authorised person which has permission to do so,
- communicated by (or on behalf of) a cryptoasset business registered with the FCA; or
- otherwise communicated in compliance with an exemption in the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005.
Financial promotion rules for cryptoassets
PS23/6 brings cryptoasset promotions made to UK consumers within the FCA's remit. The financial promotions regime will apply to all firms marketing cryptoassets to UK consumers, including firms based overseas. The rules mean that firms can only market cryptoassets to UK consumers who have the appropriate knowledge and experience to invest.
Some of the key financial promotion rules for cryptoassets include:
- Cryptoasset categorisation. Cryptoassets will be categorised as "Restricted Mass Market Investments". This means that mass-marketing to retail investors will be permitted subject to certain restrictions as well as the overarching requirement that financial promotions must be fair, clear and not misleading.
- Risk warning. Firms promoting cryptoassets to retail investors must include a standard risk warning on all cryptoasset promotions.
- Banning incentives to invest. There will be a ban on monetary and non-monetary benefits that incentivise investment in cryptoassets, such as "refer a friend" or new joiner bonuses.
- Cooling-off period. For first-time investors with a firm, the firm must adhere to a 24-hour "cooling off" period after the consumer requests to view the financial promotion.
Penalties
Once the rules are in force, the FCA states that it will take robust action against breaches including requesting takedowns of non-compliant websites, placing firms on the FCA's warning list and taking enforcement action. Firms illegally communicating financial promotions to UK consumers will be committing a criminal offence punishable by an unlimited fine and/or two years in jail.
Next steps
At this stage, the rules are "near-final" as the FCA intends to confirm the final rules shortly. The FCA expects the regime to come into effect from 8 October 2023.
All firms marketing cryptoassets to UK consumers should prepare for this regime now. Despite cryptoassets not yet falling within the FCA's regulated activities perimeter, the new financial promotion regime will be a vital step forward in the regulation of cryptoassets in the UK.
PS23/6, GC23/1 and the statutory instrument are available here, here and here, respectively.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.