COBS 4.12 Restrictions on the promotion of non-mainstream pooled investments6

1. (1)

   3Where a firm communicates any promotion of a non-mainstream pooled investment in the context of advice, it should have regard to and comply with its obligations under COBS 9 or 9A (as applicable)10. Firms should also be mindful of the appropriateness requirements in COBS 10 and 10A10 which apply to a wide range of non-advised services.

2. (2)
   1. (a)

      The effect of COBS 4.12.4R(3)(b) is that where a13 firm 13 wishes to rely on exemptions 2 (certified high net worth investors) or11 9 (self-certified sophisticated investors)11, as provided by COBS 4.12.4R (5), the13 preliminary assessment of suitability must be undertaken13 before promotion of the non-mainstream pooled investment is made to or directed at13 clients (in addition to other requirements).

   2. (b)

      There is no duty to communicate the preliminary assessment of suitability to the client. If the firm does so, it must not do so in a way that amounts to making a personal recommendation unless it complies with the rules in COBS 9 or 9A (as applicable)10 on suitability.

   3. (c)

      The requirement for a preliminary assessment of suitability does not extend to a full suitability assessment, unless advice is being offered in relation to the non-mainstream pooled investment being promoted, in which case the requirements in COBS 9 or 9A10 apply (as applicable)10. However, it requires that the firm takes10 reasonable steps to acquaint itself with the client's profile and objectives in order to ascertain whether the non-mainstream pooled investment under contemplation is likely to be suitable for that client. The firm should not promote the non-mainstream pooled investment to the client if it does not consider it likely to be suitable for that client following such preliminary assessment.

1. (1)

   3A firm which wishes to rely on any of the certified high net worth investor exemptions (see Part I of the Schedule to the Promotion of Collective Investment Schemes Order, Part I of Schedule 5 to the Financial Promotions Order and COBS 4.12.6 R) should have regard to its duties under the Principles and the client's best interests rule. In particular, the firm should take reasonable steps to ascertain that the retail client does, in fact, meet the income and net assets criteria set out in the relevant statement for certified high net worth investors.

2. (2)

   In addition, the firm should consider whether the promotion of the non-mainstream pooled investment is in the interests of the retail client and whether it is fair to make the promotion to that client on the basis that the client is a certified high net worth investor, having regard to the generally complex nature of non-mainstream pooled investments. A retail client who meets the criteria for a certified high net worth investor but not for a certified sophisticated investor may be unable to properly understand and evaluate the risks of the non-mainstream pooled investment in question.

1. (1)

   3A firm which is asked to or proposes to assess and certify a retail client as a certified sophisticated investor (see article 23 of the Promotion of Collective Investment Schemes Order, article 50 of the Financial Promotions Order and COBS 4.12.7 R) should have regard to its duties under the Principles and the client's best interests rule. In particular, the firm should carry out that assessment with due skill, care and diligence, having regard to the generally complex nature of non-mainstream pooled investments and the level of experience, knowledge and expertise the retail client being assessed must possess in order to be fairly and reasonably assessed and certified as a sophisticated investor.

2. (2)
   1. (a)

      For example, a retail client whose investment experience is limited to mainstream investments such as securities issued by listed companies, life policies or units in regulated collective investment schemes (other than qualified investor schemes or long-term asset funds14) is generally unlikely to possess the requisite knowledge to adequately understand the risks associated with investing in non-mainstream pooled investments.

   2. (b)

      In exceptional circumstances, however, the retail client may have acquired the requisite knowledge through means other than his own investment experience, for example, if the retail client is a professional of several years’ experience with the design, operation or marketing of complex investments such as options, futures, contracts for differences or non-mainstream pooled investments.

1. (1)

   3A firm which wishes to rely on any of the self-certified sophisticated investor exemptions (see Part II of the Schedule to the Promotion of Collective Investment Schemes Order, Part II of Schedule 5 to the Financial Promotions Order and COBS 4.12.8 R) should have regard to its duties under the Principles and the client's best interests rule. In particular, the firm should consider whether the promotion of the non-mainstream pooled investment is in the interests of the client and whether it is fair to make the promotion to that client on the basis of self-certification.

2. (2)

   For example, it is unlikely to be appropriate for a firm to make a promotion under any of the self-certified sophisticated investor exemption without first taking reasonable steps to satisfy itself that the investor does in fact have the requisite experience, knowledge or expertise to understand the risks of the non-mainstream pooled investment in question. A retail client who meets the criteria for a self-certified sophisticated investor but not for a certified sophisticated investor may be unable to properly understand and evaluate the risks of a non-mainstream pooled investment which invests wholly or predominantly in assets other than shares in or debentures of unlisted companies.

1. (1)

   3A firm which wishes to rely on one of the one-off promotion exemptions provided by the Promotion of Collective Investment Schemes or the Financial Promotion Order to promote a non-mainstream pooled investment to a retail client should have regard to its duties under the Principles and the client's best interests rule. In particular, the firm should consider whether the promotion of the non-mainstream pooled investment is in the interests of the client and whether it is fair to make the promotion to that client on the basis of a one-off promotion exemption.

2. (2)

   The one-off promotion exemptions permit the promotion of investments to clients under certain conditions (see PERG 8.14.3 G to PERG 8.14.13 G for guidance on the scope of the one-off exemptions in the Financial Promotion Order). Firms should note that, in the FCA's view, promotion of a non-mainstream pooled investment to a retail client who is not a certified high net worth investor, a certified sophisticated investor or a self-certified sophisticated investor is unlikely to be appropriate or in that client's best interests.

1. (1)

   3A firm which wishes to rely on the excluded communications exemption in COBS 4.12.4R (5) to promote units in a qualified investor scheme to a retail client should have regard to its duties under the Principles and the client's best interests rule.

2. (2)

   As explained in COLL 8.1, qualified investor schemes are intended only for professional clients and retail clients who are sophisticated investors. Firms should note that, in the FCA's view, promotion of units in a qualified investor scheme to a retail client who is not a certified sophisticated investor or a self-certified sophisticated investor is unlikely to be appropriate or in that client’s best interests.

14A firm which wishes to rely on the excluded communications exemption in COBS 4.12.4R(5) to promote units in a long-term asset fund to a retail client should have regard to its duties under the Principles and the client’s best interests rule. As explained in COLL 15.1.4G (Long-term asset funds – explanation), long-term asset funds are authorised funds which are intended only for professional clients and for retail clients who are sophisticated investors or certified high net worth investors.

7In this section:

1. (1)

   any requirement that a document is signed may be satisfied by an electronic signature or electronic evidence of assent; and

2. (2)

   any references to writing should be construed in accordance with GEN 2.2.14R and its related guidance provisions.

1. (1)

   15Reference in COBS 4.12.17R(5)(b)(i)(B) to the ‘provision’ of an investment is to a person developing, managing or packaging an investment such as an operator. It does not refer to persons involved in distributing, or intermediating the sale of, an investment such as a financial adviser or a person arranging investments.

2. (2)

   A firm relying on COBS 4.12.17R(5) should consider obtaining external legal advice (from legal advisers with relevant expertise and experience) on the appropriateness of omitting the words in that rule from a risk warning. Any such advice should be recorded as part of the firm’s compliance with COBS 4.12.17R(5)(c).

15Even where it is not possible to provide a risk warning in a durable medium (for example, because the financial promotion is a real time financial promotion), the recipient of the financial promotion must still be provided with an appropriate risk summary in a durable medium at or around the time that the financial promotion is communicated (COBS 4.12.17R(4)(b)).

15The FCA expects firms to take account of the latest version of the international Web Content Accessibility Guidelines (WCAG) accessibility standard when designing how the risk warning will be displayed: https://www.w3.org/WAI/WCAG21/quickref/

15For the purposes of COBS 4.12.22R, design features which might reduce the visibility or prominence of a risk warning or risk summary include, but are not limited to:

1. (1)

   using a font size for the risk warning or risk summary that is smaller than the standard size used in the financial promotion;

2. (2)

   using a background colour that does not sufficiently contrast the text or makes it difficult for the client to read the text;

3. (3)

   fading the text of the risk warning or risk summary;

4. (4)

   placing the risk warning or risk summary at the bottom of the promotion or embedding it within other standard information, for example legal information or the firm’s contact details;

5. (5)

   requiring additional links to be clicked in order for the full text of the risk warning to be seen;

6. (6)

   using a font or background in the risk warning or risk summary in the same colours as the firm’s brand, or using a font or background in the same colours as the rest of the financial promotion; and

7. (7)

   using a font or background in the risk warning or risk summary in the same colour as other forms of disclosure and standard information; the colour of the font and background should distinguish the risk warning or risk summary from other forms of information.

15The FCA expects firms to take account of the latest version of the international Web Content Accessibility Guidelines (WCAG) accessibility standard when designing how the risk summary will be displayed: https://www.w3.org/WAI/WCAG21/quickref/

15For the purposes of COBS 4.12.26R, design features which might reduce the visibility or prominence of a risk summary include, but are not limited to:

1. (1)

   using a font size for the risk summary that is smaller than the standard size used in the financial promotion;

2. (2)

   using a background colour that does not sufficiently contrast the text or makes it difficult for the retail client to read the text;

3. (3)

   fading the text of the risk summary;

4. (4)

   placing the risk summary at the bottom of the promotion or embedding it within other standard information, for example legal information or the firm’s contact details;

5. (5)

   requiring additional actions to be taken by the retail client, such as requiring additional links to be clicked in order for the full text of the risk summary to be seen;

6. (6)

   using a font or background in the risk summary in the same colours as the firm’s brand, or using a font or background in the same colours as the rest of the financial promotion; and

7. (7)

   using a font or background in the risk summary in the same colour as other forms of disclosure and standard information; the colour of the font and background should distinguish the risk summary from other forms of information.

15For the purposes of COBS 4.12.28R(2), the following reasons are considered to be valid:

1. (1)

   the relevant part of the risk summary in COBS 4 Annex 1R would be misleading in relation to the particular investment;

2. (2)

   the relevant part of the risk summary in COBS 4 Annex 1R would be irrelevant in relation to the particular investment;

3. (3)

   the risk summary in COBS 4 Annex 1R does not include a risk that is relevant to the particular investment and it is appropriate for that further risk to be included;

4. (4)

   the sole purpose of the relevant statement in the risk summary is to include a hyperlink to a webpage and the medium of communication does not permit the incorporation of a link.

This list is not exhaustive.