Advertising for Financial Products “crypto-assets”

Advertising for Financial Products “crypto-assets”

Preamble

The ICC (International Chamber of Commerce) Advertising and marketing communication Code contains general provisions recognized by all professionals:

article 1 – Basic principles, article 4 – Fairness and article 5 – Truthfulness.

Before broadcasting an advertisement, it is important to ensure that the service provider, if he provides services on digital assets requiring a compulsory registration (registration that can be made reference to) is indeed on the list of digital asset service providers in France published by the Financial Market Authority (AMF).

You should also consult the blacklists published by the AMF: a list of unauthorized players and sites for digital asset services.[1]

The purpose of this Code is to establish the rules that advertising professionals (advertisers, agencies, media outlets, advertising media and corresponding members such as trade professional organizations) have chosen to adopt concerning advertising for the acquisition of digital assets[2] – commonly referred to as crypto-assets – as well as services based on these products[3]. This also applies to training and consulting services related to these assets.

Contracts for difference (CFDs) whose value is indexed to digital assets are not concerned by this Code, and fall within the scope of the ARPP Code on

“LEVERAGED FINANCIAL PRODUCTS AND CONTRACTS FOR EXPOSURE TO FOREX, STOCK MARKET INDICES AND COMMODITY PRICES”.

In addition to the legislative and regulatory rules laid down by the authorities applicable to the products and services referred to below, and all the rules contained in the ARPP Code, professionals undertake to comply with the following ethical rules :

Scope of application

DEFINITION

Digital assets[4] include:

– digital tokens, as intangible assets representing rights that can be issued, registered

issued, registered, stored or transferred via a shared electronic recording device

(blockchain technology) that identifies its owner[5], promoted as an investment product ;

– and, digital representations of a security not issued or guaranteed by a central bank or public authority, accepted as a means of exchange, transfer, stored or exchanged electronically using the same technology[6].

ACCESS TO COMMERCIAL COMMUNICATIONS

The legislative and regulatory framework relating to these products[7] imposes the obligation of prior registration as a digital asset service provider (hereinafter “DASP”) with the French

AMF (see below). It enables DASPs to obtain approval for these four services, as well as for other services. Finally, it offers the possibility of obtaining an optional visa from the AMF for primary issuance of tokens.

It distinguishes between two different markets

  • the “primary” market, made up of offers to issue tokens (Initial Coin Offering or ICO) ;
  • the «secondary» market made up of offers of services related to ICOs.

As such:

  • Issuers of tokens on the primary market have access to advertising. However, they may request an optional visa from the regulator to extend the scope of commercial communications to canvassing and sponsorship whose purpose or effect is to advertise their offer.
  • Concerning secondary market operators, the law lists 10 activities[8] linked to services on

digital assets:

  • 4 for which service providers must apply for mandatory registration with the AMF in order to operate, and therefore to advertise:

The service of storing digital assets on behalf of third parties, or providing access to digital assets, if necessary, in the form of private cryptographic keys, with a view to hold, store and transfer digital assets;

    • The purchase or sale of digital assets in legal tender;
    • The service of exchanging digital assets for other digital assets;
    • The operation of a digital asset trading platform;
  • 6 for which mandatory registration is not required (and is therefore not required for advertising):
    • Receipt and transmission of digital asset orders on behalf of third parties;
    • Portfolio management of digital assets on behalf of third parties;
    • Advice to subscribers of digital assets;
    • Underwriting of digital assets;
    • Secured placement of digital assets;
    • Unsecured placement of digital assets.

In addition to access to advertising, providers of any of the ten activities listed above may apply for optional approval to use canvassing or sponsorship to communicate these digital asset-based services.

The AMF maintains a white list of registered DASPs on its website, therefore authorized to carry out promotional communications in connection with these services on digital assets.

It also publishes an alert table of service providers acting in breach of the applicable legislative and regulatory framework[9].

Some products and related services are characterized by a high risk of capital loss (notably due to the high volatility of their prices).

Advertising that directs users to a contact form, to download an application, or any other type, which is only authorized for authorized PSANs, is covered by this Recommendation.

For commercial influencing activities, any direct or indirect electronic promotion is forbidden[10] for :

  • The provision of services on digital assets, except for the provision of which the advertiser is licensed or registered;
  • Offers of tokens to the public, except where the advertiser has obtained a visa.
  • Digital assets, except for those linked to services for the provision of which the advertiser is registered or licensed.

These rules apply without prejudice to the provisions of the ARPP Digital Advertising Code, as well as the various fact sheets, particularly the one relating to the communication of influencers and brands.

In the same way, it is recalled that the provisions of ARPP Sustainable Development Code apply.

I – TRANSPARENCY

1. Identification

1.1 Identification of advertising

Advertising must be clearly and immediately distinguishable, without ambiguity, as such, regardless of the form and medium used. When an advertisement is broadcast in media that also include news or editorial articles, it must be presented in such a way that its advertising character is instantly apparent.

1.2 Identification of the advertiser and guarantor.

The advertiser must be clearly identified or identifiable by any means.

When the format, technique or advertising medium does not allow all the identification of the advertiser in the advertisement itself, they may be made directly accessible by any means.

The French regulator may be cited in advertising only if permitted by and in compliance with current regulations. Such quotation may not be presented in an abusive or misleading manner and must not imply approval or endorsement.

1.3 Identifying the nature of the product or service being advertised

The nature of the product or service may be identified by any means. The use of generic terms to designate the nature of the product or service is possible, provided it does not mislead or confuse, and except in cases where the rules of positive law require the use of precise and/or specific terms.

2. Clear, fair and truthful advertising

Advertising falling within the scope of this Code must comply with the principles of clarity, fairness and truthfulness and, in particular, not disparage other sectors, products or services, whether regulated or not.

2.1 Balanced advertising

All advertising must be balanced between, on the one hand, the presentation of performance (earnings, returns, including in visual or graphic form) of the product or service and, on the other hand, the risks inherent in subscribing to the latter.

This balance in advertising, recommended by various European regulators, implies the presence, in all advertising, whatever the medium used, of clear, intelligible and perfectly legible and/or audible information on the risks specific to the activity or product(s) targeted.

The wording of these warnings should emphasize, in addition to the risk of capital loss, the volatility of the prices of the products concerned and the technological risk (cyber/hacking).

When the presentation of these risks takes the form of a written statement, it should be distinct, by any means whatsoever, from other information (and should not be placed alongside other information), unless the format makes this technically impossible. When spoken, an audible statement must be clearly distinguishable from all other information.

In all cases, advertising must not give the impression that crypto-assets are suitable for everyone, that the consumer is taking no risk and/or that his or her investment is safe.

2.2 Promise of results

Returns/gains (particularly in absolute terms or as a percentage) should not be presented as being systematically achievable, easily acquired or recurring, thereby concealing the risk factor.

Advertising must not create disproportionate or false expectations with regard to these products.

Advertising must not imply that the training offered will enable the consumer to master the markets in the same way as professionals in these sectors.

Lastly, advertising must not imply that the competence, experience or training provided to the consumer will enable him or her to eliminate the risks associated with the product.

Past performance must be identified, by any means, as “past”, and it must be made clear that this does not prejudge future performance.

II – SOCIAL RESPONSIBILITY AND PROTECTION OF MINORS

1. Social responsibility

“All commercial communications must be designed with a fair sense of social and professional responsibility.

Art.1 of the International Chamber of Commerce’s Code of Advertising and Commercial communications.

Thus, advertising for products or services falling within the scope of the Code must not, whether in writing, audio or visual :

  • minimize commitments and risks, including in the case of training on the crypto-asset market;
  • present the use of these products or services as a game, or draw an analogy between gambling and the products or services covered by this Code ;
  • confer social superiority on those who use these products or services;
  • promote, trivialize or encourage excessive use of these products or services, which could

the consumer in a delicate financial situation;

  • suggest that the use of these products or services will enable the consumer to earn a regular income, or to resolve temporary or permanent financial difficulties;
  • give the impression of wealth, abundance, disproportionate gains or returns, the possibility of making a fortune or getting rich without work or effort.

Advertising must not denigrate savings products whose remuneration is regulated, or lower-risk products.

2. Protection of minors

Advertising for this type of product or service must not be aimed at minors, in view of their legal incapacity to access or subscribe to them.

It may not use visual or written elements that make it specifically attractive to minors.

The direct or implied representation of minors in training or using these products or services, even if accompanied by adult(s), or testifying about these products, is excluded.

July 2023.

[1] AMF decision of July 2, 2019 prohibiting, in or from France, the marketing, distribution

or sale of binary options to non-professional investors

[2] Defined in article L.54-10-1 of the French Monetary and Financial Code.

[3] Listed in article L.54-10-2 of the French Monetary and Financial Code.

[4] Non-fungible tokens (NFT) do not fall within the scope of this Recommendation, as they are unique and non-fungible, and do not have the characteristics of assets.

Recommendation insofar as they are unique and non-fungible and do not have the characteristics of digital assets (particularly if they are related to digital art and digital collectibles).

[5] Article L.552-2 of the French Monetary and Financial Code

[6] Article L.54-10-1 du Code monétaire et financier

[7] Law n°2019-486 of May 22, 2019 relating to the growth and transformation of companies (known as the “Loi Pacte”), as amended, codified on this point in articles L.54-10-1 et seq. of the Monetary and Financial Code. This legislative framework is completed by articles R.54-10-1 et seq. of the Monetary and Financial Code.

[8] Article L.54-10-2 of the French Monetary and Financial Code

[9] In particular for service providers offering services subject to compulsory registration in France without being registered

[10] Article 4- V. 2°, 3° and 4° of law no. 2023-451 of June 9, 2023 aimed at regulating commercial influence and

influence on social networks.