COB 3.5 General
Topics covered in this chapter
This chapter includes some provisions which are applicable to all types of financial promotion and others which apply only to specific types. COB 3.5.2 G has been provided to help locate the areas of particular relevance to types of financial promotion.
Areas of particular relevance to types of financial promotion.
This table belongs to COB 3.5.1 G
Areas of particular relevance to types of financial promotion |
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(1) |
Provisions applying to all financial promotions |
Application - who? |
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Application - what? |
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Application - where? |
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Purpose |
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General |
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(2) |
Provisions applying only to non-real time financial promotions |
Confirmation of compliance |
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Records |
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Form and content of financial promotions: non-real time financial promotions |
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Form and content of financial promotions: specific non-real time financial promotions |
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(3) |
Provisions applying only to real time financial promotions |
Form and content of financial promotions: real time financial promotions |
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Unsolicited real time financial promotions |
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(4) |
Provisions applying only to certain types of financial promotions |
Direct offer financial promotions |
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Unregulated collective investment schemes |
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Communication and approval of financial promotions for an overseas or unauthorised person |
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Additional requirements for financial promotions for an overseas long-term insurer |
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The internet and other electronic media |
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Other regulations and guidelines
A firm communicating a financial promotion may also be subject to other regulations and guidelines, outside the remit of the FSA, such as:
- (1)
the codes adopted or issued from time to time by the Advertising Standards Authority and Office of Communications (OFCOM);3
- (2)
regulations from any overseas regulator (where relevant) if the firm intends to market from the United Kingdom into any other country;
- (3)
[deleted] 5and;
- (4)
the Privacy and Electronic Communications (EC Directive) Regulations (SI 2003/2426).3
"Real time" and "non-real time" financial promotions
This chapter draws a distinction between a real time and a non-real time financial promotion. Guidance on the meaning of those expressions, which are based on article 7 of the Financial Promotion Order, is contained in PERG 8.104 (Types of financial promotion).2
4- (1)
A "real time financial promotion" is a financial promotion which is communicated in the course of a personal visit, telephone conversation or other interactive dialogue.
- (2)
A "non-real time financial promotion" is a financial promotion that is not a real time financial promotion. It includes a financial promotion made by letter, e-mail or contained in a newspaper, journal, magazine, other periodical publication, website, television or radio programme, or teletext service.
- (3)
The following are to be regarded as indications that a financial promotion is a non-real time financial promotion:
- (a)
the financial promotion is communicated to more than one person in identical terms (save for details of the recipient's identity);
- (b)
the financial promotion is communicated by way of a system which in the normal course constitutes or creates a record of the communication which is available to the recipient to refer to at a later time;
- (c)
the financial promotion is communicated by way of a system which in the normal course does not enable or require the recipient to respond immediately to it.
- (a)
Meaning of "made", "directed at" and "recipient" in this chapter
(In accordance with article 6 of the Financial Promotion Order (Interpretation: communications)) any reference in this chapter to:
- (1)
a communication being made to another person is a reference to a communication being addressed, whether verbally or in legible form, to a particular person or persons (for example, where it is contained in a telephone call or letter);
- (2)
a communication being directed at persons is a reference to a communication being addressed to persons generally (for example where it is contained in a television broadcast or website);
- (3)
a "recipient" of a communication is the person to whom the communication is made or, in the case of a non-real time financial promotion which is directed at persons generally, any person who reads or hears the communication.1
When is a financial promotion "directed only at" certain persons?
- (1)
This rule applies for the purposes of determining whether a communication is directed:
- (a)
only at market counterparties or intermediate customers under COB 3.2.5 R; or
- (b)
in a way that complies with paragraph 2(b) in COB 3 Annex 5 R.
- (a)
- (2)
If all the conditions set out in (4) are met, a communication is to be regarded as directed as in (1).
- (3)
In any other case in which one or more of those conditions are met, that fact is to be taken into account in determining whether the communication is directed as in (1) (but a communication may still be regarded as so directed even if none of the conditions in (4) are met).
- (4)
The conditions are that:
- (a)
the communication includes an indication of the description of persons to whom it is directed and an indication of the fact that the investment or service to which it relates is available only to such persons;
- (b)
the communication includes an indication that persons of any other description should not rely upon it;
- (c)
there are in place proper systems and procedures to prevent recipients other than persons to whom it is directed engaging in the investment activity, or participating in the collective investment scheme, to which the communication relates with the person directing the communication, a close relative of his or a member of the same group.
- (a)