The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) Order 2023

The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) Order 2023 was published on legislation.gov.uk, the official website of the UK government for publicizing legal documents. The order modifies the Financial Services and Markets Act 2000 and the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (SI 2005/1529) essentially to bring the promotion of certain types of cryptoassets within the scope of the 2005 order and thus the remit of the Financial Conduct Authority (FCA).
Specifically, the order
– expands the scope of qualifying cryptoassets for purposes of the financial promotion rules to include any „secured digital representation of value or contractual rights which is fungible and transferable“. This definition now basically includes ALL previously still unregulated cryptoassets such as utility tokens and exchange tokens such as Bitcoin and Ether;
– expands the scope of regulated activities, including the dealing, brokering, managing, and advising on financial instruments, to make reference to and include qualifying cryptoassets;
– provides that the communication requirement exemption as regards high net worth individuals does NOT apply to qualifying cryptoassets;
– provides that the communication requirement exemption with respect to non-real time communication or any solicited real time communication in the case of sales of financial instruments does NOT apply to qualifying cryptoassets;
– modifies certain provisions of the FSMA 2000 to ensure that cryptoasset promotions are subject to FCA rules in the same way as promotions of other financial services products with similar levels of risk; and
– provides an exemption for cryptoasset exchange providers and custodian wallet providers who are listed on the FCA’s register, but are not authorized persons, to still promote their qualifying cryptoassets without having the communications approved by authorized persons and without having obtained a permission to provide their services under Part 4A of the FSMA 2000.