On 18 January 2022, HM Treasury announced that it will be bringing adverts for cryptoassets in line with other types of financial advertising by extending the financial promotion restrictions to encompass them. This will mean that adverts for cryptoassets will need to be either promoted by a firm authorised by the Financial Conduct Authority (FCA) or Prudential Regulatory Authority (PRA), or be approved by an authorised firm. Authorised advertisers are already subject to FCA rules relating to marketing but these changes will give the FCA powers to regulate a wider range of promotions relating to cryptoassets. In addition, the FCA will shortly consult on proposed financial promotions rules that will apply to cryptoassets.
On implementation, anyone advertising cryptoassets will need to comply with the financial promotions regime, which may mean that an authorised firm will need to ensure the adverts meet the applicable FCA rules. The guidance from the Advertising Standards Authority (ASA) will remain relevant and in the meantime it is particularly important that advertisers follow it, even if they are not subject to the financial promotions regime.
The ASA has clarified its expectations through a series of rulings published on 15 December 2021. These full rulings are accessible through the ASA’s website. Here we have summarised the guidance we consider can usefully be taken from them.
| Guidance |
CAP Code (Edition 12) Rule(s) |
| Marketing communications for investments should make clear that they are variable and can go down as well as up. They should also state significant limitations and qualifications clearly.
If advertisers are going to use past performance in their advertising, the adverts should make it clear that past performance of an investment is not indicative of future performance. |
3.1 and 3.3 (Misleading advertising)
3.9 (Qualification) 14.4 (Financial products) |
| Information regarding buying and selling fees is material and should be included in marketing communications. This information should be included in the advert itself and not by reference. | 3.1 and 3.3 (Misleading advertising)
3.9 (Qualification) |
| Adverts should contain references to capital gains tax (CGT) and explain that profits from investing are subject to CGT once allowances are used up.
Information in relation to CGT should be included in the advert itself and not by reference. |
1.3 (Social responsibility)
14.1 (Financial products) |
| Advertisers must be careful not to hold themselves out as being regulated, such as by stating that the competition is unregulated. | 3.1 and 3.3 (Misleading advertising)
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| Advertisers ought not to use language/make statements that could lead consumers to think that investment in cryptocurrency is straightforward and suitable for (or accessible to) anyone regardless of their financial circumstances or understanding of the product.
Advertisers should be particularly wary of this when using incentives to encourage consumers to invest in cryptocurrency. |
1.3 (Social responsibility)
14.1 (Financial products) |
The ASA has released three additional rulings in the crypto space since 15 December 2021, namely against Arsenal Football Club plc, Skrill Ltd and Forisgfs UK Ltd t/a Crypto.com. Although he ASA has not parted from its 15 December 2021 approach in upholding these rulings, these more recent rulings:
- Confirm that, in including information about CGT in adverts, advertisers should ensure that the information is clear and not only available to consumers by reference or through a link.
- Suggest that adverts that encourage consumers to buy crypto on credit will likely be regarded as at least being in breach of CAP Code (Edition 12) rules 1.3 (Social responsibility) and 14.1 (Financial products).
- Show that there is no real distinction in the treatment of adverts that advertise a service that facilitates the purchase of cryptocurrency and adverts that advertise cryptocurrency or encourage consumers to buy it.
- Emphasise that advertisers do need to take care to ensure that their adverts do not trivialise investment in cryptoassets by using language or making statements that suggest that investing in cryptocurrency is simple and conventional.
This new set of rulings also serves as a reminder that websites for entities containing marketing material are not beyond the ASA’s reach.
