In brief
The new proposed regulation (“Circular“) is aimed at developing the rules, principles and criteria to which crypto-asset advertising will be subject. The Circular defines the type of entities and assets included in its scope and the powers granted to the Spanish financial regulator, the National Securities Market Commission (CNMV), so it can supervise and control the adverting of certain types of crypto assets that have been deemed unregulated products thus far. The deadline for interested parties to reply to the public consultation is 31 August 2021.
Please find below a short summary of the scope and content of the proposed Circular, based on the draft that was opened to public consultation on 14 June 2021.
Obliged entities
The new rules will be applicable to the following entities:
- Providers of crypto-asset services when they advertise crypto assets;
- Providers of advertising services;
- Any natural or legal person not included in the previous two groups and which conduct activities related to crypto assets, either on their own or through third-party delegation.
Activities within the scope
The Circular will be applicable to any advertising activity aimed at current or potential Spain-domiciled investors, if the goal of such advertising is to promote crypto assets as a form of investment.
For the purpose of this regulation, the promotion of crypto assets as a form of investment will be presumed when the advertising refers to its current or future profitability and price while proposing an opportunity to invest in said assets. It shall also be presumed that the advertising activity is aimed at current or potential Spain-domiciled investors when it is carried out through Spanish media or when it is created in Spanish or in one of the other official languages recognized in Spain.
The scope of the draft Circular open to consultation excludes (a) the advertising of crypto assets considered to be financial instruments (those appearing in the Annex of the Recast Securities Market Act); (b) the advertising of crypto assets that cannot be invested, due to their nature or characteristics; (c) the advertising of crypto assets whose only purpose is to grant digital access to a product or service that is only accepted by its issuer or by a limited group of commercial suppliers with which the issuer has a contractual relationship; (d) the advertising of crypto assets that are unique and not interchangeable with other crypto assets; (e) explanatory documents on new issues (“White paper“); (f) corporate advertising campaigns with generic information about the legally-bound subject or its corporate purpose, with the aim of gaining popularity amongst the public, in this case the exclusion will only be applicable if there is no reference to crypto assets or to crypto-asset services and if all advertising messages appearing on the legally-bound subject’s website comply with the provisions of the Circular; (g) the documents or information provided by the crypto-asset offeror, its representative or a third party acting on its behalf in presentations aimed at institutional investors or analysts, regarding a new issue of crypto assets and to discover what interest institutional investors may have in such issue; and (h) the unsponsored publications issued by analysts or independent reviewers regarding crypto assets.
Main obligations
The main obligations imposed by this new regulation are:
- The need to include disclaimers and references to risk factors of the advertised product.
- Need to notify the regulator (CNMV) 15 business days prior to any mass advertising campaign. Said campaigns could be initiated after 15 business days (i.e., there is no need to wait for formal approval), unless the CNMV notifies the relevant entity that the add is considered non-compliant with the new rules within said 15-day period.
- Obligation to keep a register of the advertisements published in the past year.
Supervision of advertising
Advertising that is aimed at current or potential Spain-domiciled investors will not require prior notification be sent to the CNMV, except for mass advertising campaigns. Nonetheless, the CNMV, in its capacity as regulator, may require obliged entities to notify other campaigns in advance when it considers that the advertising could have a significant impact on the target audience.
Additionally, the CNMV may require obliged entities to provide specific information on advertising campaigns or specific ads in order to assess compliance with the requirements set out in the Circular. Said requirement must met by the obliged entities within a period of three days.
The CNMV may also require that marketing campaigns that do not comply with the provisions of the Circular be suspended or corrected, notwithstanding the CNMV’s authority to apply, where appropriate, penalties, according to the laws that are applicable to each institution.
Entering into force
The Circular will enter into force three months after its publication.
