Approving financial promotions

The guidance explains some practical implications of our existing requirements, rather than setting out new standards.

We have particular concerns about the promotion of unlisted debt securities or 'mini-bonds', although the broad principles outlined here are also likely to be relevant to approving financial promotions in other sectors. In our Dear CEO letter of 11 April 2019 we set out some examples of firms failing to meet our requirements when approving the financial promotions of retail investments (for example ‘mini-bonds’).

We have permanently banned the mass marketing of speculative mini-bonds to retail consumers from 1 January 2021, to prevent consumer harm. Read our Policy Statement here.

On this page, where we refer to a ‘firm’, we mean an authorised person approving a financial promotion of, and for communication by, an unauthorised person. Where we refer to a ‘product provider’, we mean an unauthorised provider of retail investment products (eg, a company issuing a bond) that has its financial promotions approved by a firm.

We also remind firms that are considering approving cryptoasset financial promotions that they must comply with the relevant regulatory requirements before doing so. This includes the rules in COBS 4.10. In particular, our rule that firms must not communicate or approve financial promotions unless they have appropriate competence and experience (COBS 4.10.9A).

Firms approving promotions should also familiarise themselves with the implications of the incoming gateway for firms approving promotions as provided for in the Financial Services and Markets Bill, which is currently making its way through Parliament.

We expect firms to notify us before they approve cryptoasset financial promotions in accordance with Principle 11 (relations with regulators) and SUP 15. Read our Policy Statement PS23/6 (PDF).

If you intend to begin approving any other financial promotions of unauthorised persons, you should consider whether this is something you need to tell us about in accordance with Principle 11 (relations with regulators).

Ensuring that a promotion is fair, clear and not misleading

Before a firm approves a financial promotion for communication by an unauthorised person, it must confirm that the financial promotion complies with our financial promotion rules (COBS 4.10.2 R (1)). This is also true of firms which approve their own financial promotions for communication by unauthorised persons (see PERG 8.9.3 G).

All financial promotions must be fair, clear and not misleading (COBS 4.2.1 R). This means that you must not approve the content of a financial promotion for communication by an unauthorised person, unless you are satisfied that the promotion is fair, clear and not misleading.

To be in a position to confirm this, you should consider both:

• the presentation of the promotion (eg, whether the risk warnings are given sufficient prominence)
• the substance (eg, the fairness and veracity of claims made and whether these can be substantiated) 

You should therefore analyse, and carry out due diligence regarding, the substance of a promotion before approving its content for communication by an unauthorised person. The extent and substance of the analysis and diligence needed to be able confirm that a promotion is fair, clear and not misleading will vary from case-to-case and will depend on the form and content of the promotion.

When assessing whether a promotion is fair, clear and not misleading, a firm may need to consider (among other things):

• The authenticity of the proposition described in the relevant promotion. This may mean undertaking background checks on directors, controllers or other key individuals associated with the product provider.
• The commercial viability of the proposition described in the promotion. Has the promotion adequately disclosed any significant factors that could threaten the product’s viability? Could potential investors make an informed decision about investment?
• Whether advertised or headline rates of return are reasonably capable of being achieved. This may mean reviewing materials such as the product provider’s financial statements and/or management accounts, business plan, financial projections and capital position.
• Whether there are any fees, commissions or other charges within the investment’s structure or elsewhere that could materially affect the ability of the product provider to deliver advertised or headline rates of return.
• If the product is advertised as being eligible for a particular tax treatment (eg, for inclusion within an Innovative Finance ISA), does the product actually meet the requirements for this treatment? (For tax treatment, see also COBS 4.5.7 R; COBS 4.5A.8 UK)

In assessing whether a financial promotion is fair, clear and not misleading, a firm should consider the guidance in COBS 4. In particular, firms are reminded that COBS 4.2.5 G states that ‘a financial promotion should not describe a feature of a product or service as ‘guaranteed’, ‘protected’ or ‘secure’, or use a similar term unless:

• that term is capable of being a fair, clear and not misleading description of it, and
• the firm communicates all of the information necessary, and presents that information with sufficient clarity and prominence, to make the use of that term fair, clear and not misleading.

This means that where an investment is described in a promotion as ‘secured’ or ‘asset-backed’ (or equivalent), you should consider whether the promotion contains the information necessary to enable investors to:

• understand how such protection operates, and

•   assess any potential weaknesses or deficiencies in it 

This may involve taking steps to ascertain the likelihood of any security being sufficient to cover investors’ investments (eg, capital repayments, interest payments).

You are also reminded of the importance of being clear with investors about the extent to which a product or service is regulated.  A financial promotion that you approve for a product provider should not suggest or imply that the product provider’s activities (eg, issuing bonds) are regulated if they are not (COBS 4.2.4 G (4)). We wrote separately to firms in January 2019 on the importance of being clear with consumers about the extent of regulation applicable to products or services.

Ensuring that a promotion complies with the financial promotion rules

COBS 4 also contains other requirements applying to different types of financial promotion. 

A firm approving a financial promotion must confirm that the promotion complies with all applicable financial promotion rules (COBS 4.10.2 R (1)). In particular, a financial promotion that is likely to be received by a retail client must give a fair and prominent indication of relevant risks when referencing potential benefits (COBS 4.5.2 R (2); COBS 4.5A.3 UK).

On the need to ensure that risk warnings are afforded sufficient prominence within financial promotions, firms are reminded of our guidance.

When approving a financial promotion, you should form your own view of the risks associated with an investment in order to confirm that this requirement is satisfied (ie, that the promotion gives sufficient prominence to all relevant risks). You should not assume that the product provider has done so.

Where a financial promotion contains certain types of comparison, the firm approving the promotion must ensure that such comparisons are meaningful and presented in a fair and balanced way (COBS 4.5.6 R); COBS 4.5A.7 UK). This would include, for example, where a retail investment product is compared to a bank savings account. The promotion should contain enough information to enable prospective investors to make an informed decision.

Reliance on others

When approving a financial promotion of, and for communication by, an unauthorised person, it is unlikely to be appropriate to accept at face value information provided by the unauthorised person. You should form your own view as to whether the promotion complies with our financial promotion rules.

That said, in carrying out the types of assessment and analysis described here, you may be able to rely on information and analysis prepared by independent professional advisers on behalf of the unauthorised person.  You should consider the appropriateness of relying on this type of information on a case-by-case basis.

Social media and digital communications

Retail investment product providers are increasingly relying on social media and other forms of digital communication to promote their products. Firms approving financial promotions for communication through this type of channel are reminded of our guidance (FG15/4).

Systems and controls

COBS 4.10.1 G reminds firms that approve financial promotions that they should have in place systems and controls or policies and procedures, or an effective internal control system, in order to comply with our financial promotion rules in COBS 4.

A firm’s systems and controls should ensure that it does not approve financial promotions which it lacks the competence to properly review and consider.

You are also reminded of the importance of maintaining adequate records of the financial promotions which you approve (COBS 4.11.1 R (1)). When you approve a financial promotion, you should consider recording how the promotion complies with our rules (COBS 4.11.2 G).

Complying with FCA requirements

Our guidance on approving financial promotions is not exhaustive and is not a complete description of the steps which you should take when approving a financial promotion relating to a retail investment. It is up to you to determine the extent of the analysis or review needed to confirm that a financial promotion complies with our rules on a case-by-case basis.

Where we identify a financial promotion that has been approved by a firm but that does not meet our requirements, there are a range of steps which we can take. These include:

• Asking the firm that approved the promotion to ensure that it is changed or withdrawn.
• Directing the firm to withdraw its approval of the financial promotion using the power in section 137S of the Financial Services and Markets Act 2000.
• Opening an Enforcement investigation which, if we find serious misconduct, may lead to Enforcement action such as a financial penalty.