1This chapter applies to a firm:

1. (1)

   communicating with a client in relation to its designated investment business;

2. (2)

   communicating or approving a financial promotion other than:

   1. (a)

      a financial promotion of qualifying credit, a home purchase plan or a home reversion plan; or

   2. (b)

      a financial promotion in respect of a non-investment insurance contract; or

   3. (c)

      a promotion of an unregulated collective investment scheme that would breach section 238(1) of the Act if made by an authorised person (firms may not communicate or approve such promotions).

6 COBS 4.4.3R applies to a firm with respect to the activity of issuing electronic money.

1. (1)

   In relation to communications by a firm to a client in relation to its designated investment business this chapter applies in accordance with the general application rule and the rule on business with UKclients from an overseas establishment (COBS 1 Annex 1 Part 2 paragraph 2.1R).

2. (2)

   In addition, the financial promotion rules apply to a firm in relation to:

   1. (a)

      the communication of a financial promotion to a person inside the United Kingdom;

   2. (b)

      the communication of a cold call to a person outside the United Kingdom, unless:

      1. (i)

         it is made from a place outside the United Kingdom; and

      2. (ii)

         it is made for the purposes of a business which is carried on outside the United Kingdom and which is not carried on in the United Kingdom; and

   3. (c)

      the approval of a financial promotion for communication to a person inside the United Kingdom.

1. (1)

   A firm must ensure that a communication or a financial promotion is fair, clear and not misleading.

2. (2)

   This rule applies in relation to:

   1. (a)

      a communication by the firm to a client in relation to designated investment business other than a third party prospectus;

   2. (b)

      a financial promotioncommunicated by the firm that is not:

      1. (i)

         an excluded communication;

      2. (ii)

         a non-retail communication;

      3. (iii)

         a third party prospectus; and

   3. (c)

      a financial promotion approved by the firm.

1If, in relation to a particular communication or financial promotion, a firm takes reasonable steps to ensure it complies with the fair, clear and not misleading rule, a contravention of that rule does not give rise to a right of action under section 138D of the Act.

1. (1)

   A firm must ensure that a financial promotion addressed to a client is clearly identifiable as such.

   [Note: article 19(2) of MiFID and article 77 of the UCITS Directive]3

2. (2)

   If2 a financial promotion relates to a2firm'sMiFID or equivalent third country business, this rule does not apply to the extent that the2financial promotion is a third party prospectus.

   2
3. (3)

   If2 a financial promotion relates2 to a 2 firm's business that is not 2MiFID or equivalent third country business, this rule applies to communicating or approving the2financial promotion but does not apply:

   1. (a)

      to the extent that it is an excluded communication;

   2. (b)

      to the extent that it is a prospectus advertisement to which PR 3.3 applies;

   3. (c)

      if it is image advertising;

   4. (d)

      if it is a non-retail communication;

   5. (e)

      to the extent that it relates to a pure protection contract that is a long-term care insurance contract.

      1
4. (4)

   In the case of a marketing communication that relates to a UCITS scheme or an EEA UCITS scheme,

   (2) and (3) do not limit the application of this rule.3

A firm must ensure that any reference in advertising to an investor compensation scheme established under the Investor Compensation Directive is limited to a factual reference to the scheme.

2To ensure that a firm pays due regard to the information needs of its clients, and communicates information to them in a way which is clear, fair and not misleading with respect to the activity of issuing electronic money, a firm must ensure that, in good time before the firm issues electronic money to a person, it has been communicated to that person on paper or in another durable medium that the compensation scheme does not cover claims made in connection with issuing electronic money.

1. (1)

   Subject to (2) and (3), this section applies to a firm in relation to:

   1. (a)

      the provision of information in relation to its designated investment business; and

   2. (b)

      the communication or approval of a financial promotion;

   where such information or financial promotion is addressed to, or disseminated in such a way that it is likely to be received by, a retail client.

2. (2)

   If3 a communication relates to a firm's3MiFID or equivalent third country business, this section does not apply:3

   1. (a)

      to the extent that it is a third party prospectus;

      3
   2. (b)

      if it is image advertising.

3. (3)

   If3 a communication relates to a firm's business that is not3MiFID or equivalent third country business, this section does not apply:3

   1. (a)

      to the extent that it is an excluded communication;

   2. (b)

      to the extent that it is a prospectus advertisement to which PR 3.3 applies;

   3. (c)

      if it is image advertising.

A firm must ensure that information:

1. (1)

   includes the name of the firm;

2. (2)

   is accurate and in particular does not emphasise any potential benefits of relevant business or a relevant investment without also giving a fair and prominent indication of any relevant risks;

3. (3)

   is sufficient for, and presented in a way that is likely to be understood by, the average member of the group to whom it is directed, or by whom it is likely to be received; and

4. (4)

   does not disguise, diminish or obscure important items, statements or warnings.

1. (1)

   If information compares relevant business, relevant investments, or persons who carry on relevant business, a firm must ensure that:

   1. (a)

      the comparison is meaningful and presented in a fair and balanced way; and

   2. (b)

      in relation to MiFID or equivalent third country business;

      1. (i)

         the sources of the information used for the comparison are specified; and

      2. (ii)

         the key facts and assumptions used to make the comparison are included.

2. (2)

   In this rule, in relation to MiFID or equivalent third country business,1ancillary services are to be regarded as relevant business.

1. (1)

   If any information refers to a particular tax treatment, a firm must ensure that it prominently states that the tax treatment depends on the individual circumstances of each client and may be subject to change in future.

   [Note: article 27(7) of the MiFID implementing Directive]

2. (2)

   This rule applies in relation to MiFID or equivalent third country business or, otherwise, to a financial promotionfinancial promotion. However, it does not apply to a financial promotion to the extent that it relates to:

   1. (a)

      [deleted]2

      2
   2. (b)

      a pure protection contract that is a long-term care insurance contract.

1. (1)

   A firm must ensure that information contained in a financial promotion is consistent with any information the firm provides to a retail client in the course of carrying on designated investment business or, in the case of MiFID or equivalent third country business, ancillary services.

   [Note: article 29(7) of the MiFID implementing Directive]

2. (2)

   This rule does not apply to a financial promotion to the extent that it relates to:

   1. (a)

      [deleted]2

      2
   2. (b)

      a pure protection contract that is a long-term care insurance contract.

1. (1)

   Subject to (2) and (3), this section applies to a firm in relation to:1

   1. (a)

      1the provision of information in relation to its MiFID or equivalent third country business;2

      22
   2. (b)

      the communication or approval of a financial promotion;1

where such information or financial promotion is addressed to, or disseminated in such a way that it is likely to be received by, a retail client.1

1. (2)

   If3 a communication relates to a firm'sMiFID or equivalent third country business, this section does not apply:3

   1. (a)

      to the extent that the communication is a third party prospectus;

      3
   2. (b)

      if it is image advertising.

2. (3)

   3If a communication relates to 3a firm's business that is not3MiFID or equivalent third country business, this section does not apply:3

   1. (a)

      to the extent that it is an excluded communication;

   2. (b)

      to the extent that it is a prospectus advertisement to which PR 3.3 applies;

   3. (c)

      if it is image advertising;

   4. (d)

      to the extent that it relates to a deposit that is not a structured deposit;

   5. (e)

      to the extent that it relates to a pure protection contract that is a long-term care insurance contract.

A firm must ensure that information that contains an indication of past performance of relevant business, a relevant investment or a financial index, satisfies the following conditions:

1. (1)

   that indication is not the most prominent feature of the communication;

2. (2)

   the information includes appropriate performance information which covers at least the immediately preceding five years, or the whole period for which the investment has been offered, the financial index has been established, or the service has been provided if less than five years, or such longer period as the firm may decide, and in every case that performance information must be based on and show complete 12-month periods;

3. (3)

   the reference period and the source of information are clearly stated;

4. (4)

   the information contains a prominent warning that the figures refer to the past and that past performance is not a reliable indicator of future results;

5. (5)

   if the indication relies on figures denominated in a currency other than that of the EEA State in which the retail client is resident, the currency is clearly stated, together with a warning that the return may increase or decrease as a result of currency fluctuations;

6. (6)

   if the indication is based on gross performance, the effect of commissions, fees or other charges is disclosed.

A firm must ensure that information that contains an indication of simulated past performance of relevant business, a relevant investment or a financial index, satisfies the following conditions:

1. (1)

   it relates to an investment or a financial index;

2. (2)

   the simulated past performance is based on the actual past performance of one or more investments or financial indices which are the same as, or underlie, the investment concerned;

3. (3)

   in respect of the actual past performance, the conditions set out in paragraphs (1) to (3), (5) and (6) of the rule on past performance (COBS 4.6.2 R) are complied with; and

4. (4)

   the information contains a prominent warning that the figures refer to simulated past performance and that past performance is not a reliable indicator of future performance.

1. (1)

   A firm must ensure that information that contains an indication of future performance of relevant business, a relevant investment, a structured deposit or a financial index, satisfies the following conditions:

   1. (a)

      it is not based on and does not refer to simulated past performance;

   2. (b)

      it is based on reasonable assumptions supported by objective data;

   3. (c)

      it discloses the effect of commissions, fees or other charges if the indication is based on gross performance; and

   4. (d)

      it contains a prominent warning that such forecasts are not a reliable indicator of future performance.

2. (2)

   Other than in relation to MiFID or equivalent third country business, this rule only applies to financial promotions that relate to a financial instrument (or a financial index that relates exclusively to financial instruments) or a structured deposit.

1. (1)

   1A firm that communicates to a client a projection for a packaged product which is not a financial instrument2must ensure that the projection complies with the projectionsrules in COBS 13.4, COBS 13.5 and COBS 13 Annex 2.

   2
2. (2)

   A firm must not communicate a projection for a highly volatile product to a client unless the product is a financial instrument.

1. (1)

   Subject to (3) and (4), a firm must ensure that a direct offer financial promotion that is addressed to, or disseminated in such a way that it is likely to be received by, a retail client contains:

   1. (a)

      such of the information referred to in the rules on information disclosure (COBS 6.1.4 R, COBS 6.1.6 R, COBS 6.1.7 R, COBS 6.1.9 R, COBS 14.3.2 R, COBS 14.3.3 R, COBS 14.3.4 R and COBS 14.3.5 R) as is relevant to that offer or invitation; and

      [Note: article 29(8) of the MiFID implementing Directive, the rules listed implement Articles 30 to 33 of the MiFID implementing Directive]

   2. (b)

      if it does not relate to MiFID or equivalent third country business, additional appropriate information about the relevant business and relevant investments so that the client is reasonably able to understand the nature and risks of the relevant business and relevant investments and consequently to take investment decisions on an informed basis.

2. (2)

   This rule does not require the information in (1) to be included in a direct offer financial promotion if, in order to respond to an offer or invitation contained in it, the retail client must refer to another document or documents, which, alone or in combination, contain that information.

3. (3)

   3If a communication relates to a firm's MiFID or equivalent third country business, this section does not apply:3

   1. (a)

      to the extent that it is a third party prospectus;

   2. (b)

      if it is image advertising.

4. (4)

   3If a communication relates to a firm's business that is not MiFID or equivalent third country business, this section does not apply:3

   1. (a)

      to the extent that it is an excluded communication;

   2. (b)

      to the extent that it is a prospectus advertisement to which PR 3.3 applies;

   3. (c)

      if it is image advertising;

   4. (d)

      to the extent that it relates to a deposit that is not a cash deposit ISA or cash deposit CTF;

   5. (e)

      to the extent that it relates to a pure protection contract that is a long-term care insurance contract.

5. (5)

   In this rule, in relation to MiFID or equivalent third country business,2ancillary services are to be regarded as relevant business.

1. (1)

   2A firm must not communicate or approve a direct offer financial promotion:

   1. (a)

      relating to a warrant or derivative;

   2. (b)

      to or for communication to a retail client; and

   3. (c)

      where the firm will not itself be required to comply with the rules on appropriateness (see COBS 10);

   unless the firm has adequate evidence that the condition in (2) is satisfied.

2. (2)

   The condition is that the person who will arrange or deal in relation to the derivative or warrant will comply with the rules on appropriateness or equivalent requirements for any application or order that the person is aware, or ought reasonably to be aware, is in response to the direct offer financial promotion.

This section applies to a firm in relation to the communication of 3a financial promotion that is not in writing, but it does not apply:

1. (1)

   to the extent that the financial promotion is an excluded communication;

2. (2)

   if the financial promotion is image advertising;

3. (3)

   if the financial promotion is a non-retail communication;1

4. (4)

   [deleted]2

   2
5. (5)

   to the extent that the financial promotion relates to a pure protection contract that is a long-term care insurance contract.1

A firm must not make a cold call unless:

1. (1)

   the recipient has an established existing client relationship with the firm and the relationship is such that the recipient envisages receiving cold calls; or

2. (2)

   the cold call relates to a generally marketable packaged product which is not:

   1. (a)

      a higher volatility fund; or

   2. (b)

      a life policy with a link (including a potential link) to a higher volatility fund; or

3. (3)

   the cold call relates to a controlled activity to be carried on by an authorised person or exempt person and the only controlled investments involved or which reasonably could be involved are:

   1. (a)

      readily realisable securities (other than warrants); and

   2. (b)

      generally marketable non-geared packaged products.

A firm must not communicate a solicited or unsolicited financial promotion that is not in writing, to a client3 outside the firm's premises, unless the personcommunicating it:

1. (1)

   only does so at an appropriate time of the day;

2. (2)

   identifies himself and the firm he represents at the outset and makes clear the purpose of the communication;

3. (3)

   clarifies if the client would like to continue with or terminate the communication, and terminates the communication at any time that the client requests it; and

4. (4)

   gives a contact point to any client with whom he arranges an appointment.

1. (1)

   4Subject to (2) and (3), this section applies to a firm in relation to the communication or approval of a financial promotion that relates to the business of an overseas person.4

2. (2)

   This section does not apply to a firm in relation to its MiFID or equivalent third country business.

3. (3)

   4If a communication relates to a firm's business that is not MiFID or equivalent third country business, this section does not apply:4

   1. (a)

      to the extent that it is an excluded communication;

   2. (b)

      to the extent that it is a prospectus advertisement to which PR 3.3 applies;

   3. (c)

      if it is image advertising;

   4. (d)

      if it is a non-retail communication;1

   5. (e)

      [deleted]3

      23
   6. (f)

      to the extent that it relates to a pure protection contract that is a long-term care insurance contract.1

A firm must not communicate or approve a financial promotion which relates to a particular relevant investment or relevant business of an overseas person, unless:

1. (1)

   the financial promotion makes clear which firm has approved or communicated it and, where relevant, explains:

   1. (a)

      that the rules made under the Act for the protection of retail clients do not apply;

   2. (b)

      the extent and level to which the compensation scheme will be available, or if the scheme will not be available, a statement to that effect; and

   3. (c)

      if the communicator wishes, the protection or compensation available under another system of regulation; and

2. (2)

   the firm has taken reasonable steps to satisfy itself4 that the overseas person will deal with retail clients in the United Kingdom in an honest and reliable way.

A firm may only2communicate or approve a financial promotion to enter into a life policy with a person who is:

1. (1)

   an authorised person; or

2. (2)

   an exempt person who is exempt in relation to effecting or carrying out contracts of insurance of the class to which the financial promotion relates; or

3. (3)

   an overseas long-term insurer that is entitled under the law of its home country or territory to carry on there insurance business of the class to which the financial promotion relates.

A financial promotion for an overseas long-term insurer, which has no establishment in the United Kingdom, must include:

1. (1)

   the full name of the overseas long-term insurer, the country where it is registered, and, if different, the country where its head office is situated;

2. (2)

   a prominent statement that 'holders of policies issued by the company will not be protected by the Financial Services Compensation Scheme if the company becomes unable to meet its liabilities to them'; and

3. (3)

   if any trustee, investment manager or United Kingdom agent of the overseas long-term insurer is named which is not independent of the overseas long-term insurer, a prominent statement of that fact.

A financial promotion for an overseas long-term insurer which is authorised to carry on long-term insurance business in any country or territory listed in paragraph (c) of the Glossary definition of overseas long-term insurer must also include:

1. (1)

   the full name of any trustee of property of any description which is retained by the overseas long-term insurer in respect of the promoted contracts;

2. (2)

   an indication whether the investment of such property (or any part of it) is managed by the overseas long-term insurer or by another person and the full name of any investment manager;

3. (3)

   the registered office of any such trustee and of any investment manager and of his principal office (if different); and

4. (4)

   where any person in the United Kingdom takes, or may take, any steps on behalf of the overseas long-term insurer to enter into a promoted contract, the following details:

   1. (a)

      the full name of the overseas long-term insurer;

   2. (b)

      the registered office, head office or principal place of business of that person in the United Kingdom; and

   3. (c)

      if there is more than one such person, the principal or main person in the United Kingdom.

If a financial promotion relates to a life policy with an overseas long-term insurer but does not name the overseas long-term insurer by giving its full name or its business name:

1. (1)

   it must include the following prominent statement: "This financial promotion relates to an insurance company which does not, and is not authorised to, carry on in any part of the United Kingdom the class of insurance business to which this promotion relates. This means that the management and solvency of the company are not supervised by the Financial Conduct Authority or the Prudential Regulation Authority. Holders of policies issued by the company will not have the right to complain to the Financial Ombudsman Service if they have a complaint against the company and will not be protected by the Financial Services Compensation Scheme if the company should become unable to meet its liabilities to them"; and

2. (2)

   if it also refers to other investments, it must make this clear.

1. (1)

   Before a firmapproves a financial promotion for communication by an unauthorised person, it must confirm that the financial promotion complies with the financial promotion rules.

2. (2)

   If, at any time after a firm has complied with (1), a firm becomes aware that a financial promotion no longer complies with the financial promotion rules, it must withdraw its approval and notify any person that it knows to be relying on its approval as soon as reasonably practicable.

3. (3)

   When approving a financial promotion, the firm must confirm compliance with the financial promotion rules that would have applied if the financial promotion had been communicated by a firm other than in relation to MiFID or equivalent third country business.

A firm must not approve a financial promotion to be made in the course of a personal visit, telephone conversation or other interactive dialogue.

If a firmapproves a financial promotion in circumstances in which one or more of the financial promotion rules, or the prohibition on approval of promotions for collective investment schemes in section 240(1) of the Act (Restriction on approval), are expressly disapplied, the approval must be given on terms that it is limited to those circumstances.

1. (1)

   A firm (A) will not contravene any of the financial promotion rules if it communicates a financial promotion which has been produced by another person and:

   1. (a)

      A takes reasonable care to establish that another firm (B) has confirmed that the financial promotion complies with the financial promotion rules;

   2. (b)

      A takes reasonable care to establish that it communicates the financial promotion only to recipients of the type for whom it was intended at the time B carried out the confirmation exercise; and

   3. (c)

      so far as A is, or ought reasonably to be, aware:

      1. (i)

         the financial promotion has not ceased to be fair, clear and not misleading since that time; and

      2. (ii)

         B has not withdrawn the financial promotion.

2. (2)

   This rule does not apply in relation to MiFID or equivalent third country business.

1. (1)

   A firm must make an adequate record of any financial promotion it communicates or approves, other than a financial promotion made in the course of a personal visit, telephone conversation or other interactive dialogue.

2. (2)

   For a telemarketing campaign, a firm must make an adequate record of copies of any scripts used.

3. (3)

   A firm must retain the record in relation to a financial promotion relating to:

   1. (a)

      a pension transfer, pension opt-out or FSAVC, indefinitely;

   2. (b)

      a life policy, occupational pension scheme1, SSAS, personal pension scheme or stakeholder pension scheme, for six years;

   3. (c)

      MiFID or equivalent third country business, for five years; and

   4. (d)

      any other case, for three years.

4. (4)

   4If a communication relates to a firm'sMiFID or equivalent third country business, this section does not apply:4

   1. (a)

      to the extent that the communication is a third party prospectus;2

   2. (b)

      if it is image advertising;2

   3. (c)

      if it is a non-retail communication.2

5. (5)

   4If a communication relates to a firm's business that is not MiFID or equivalent third country business, this section does not apply:4

   1. (a)

      to the extent that it is an excluded communication;

   2. (b)

      to the extent that it is a prospectus advertisement to which PR 3.3 applies;

   3. (c)

      if it is image advertising;

   4. (d)

      if it is a non-retail communication;2

   5. (e)

      [deleted]3

      3
   6. (f)

      to the extent that it relates to a pure protection contract that is a long-term care insurance contract2.

1. (1)

   1This section applies to a firm in relation to a communication to a client, including an excluded communication, that is a marketing communication within the meaning of the UCITS Directive.

2. (2)

   This section does not apply to:

   1. (a)

      image advertising; or

   2. (b)

      the instrument constituting the scheme, the prospectus, the key investor information (or alternatively the simplified prospectus or EEA simplified prospectus) or the periodic reports and accounts of either a UCITS scheme or an EEA UCITS scheme.

1. (1)

   A firm must ensure that a marketing communication that comprises an invitation to purchase units in a UCITS scheme or EEA UCITS scheme and that contains specific information about the scheme:

   1. (a)

      makes no statement that contradicts or diminishes the significance of the information contained in the prospectus and the key investor information document or EEA key investor information document for the scheme;

   2. (b)

      indicates that a prospectus exists for the scheme and that the key investor information document or EEA key investor information document is available; and

   3. (c)

      specifies where and in which language such information or documents may be obtained by investors or potential investors or how they may obtain access to them.

2. (2)

   Where a UCITS scheme or an EEA UCITS scheme may invest more than 35% of its scheme property in transferable securities and money market instruments issued or guaranteed by an EEA State, one or more of its local authorities, a third country or a public international body to which one or more EEA States belong, the firm must ensure that a marketing communication relating to the scheme contains a prominent statement drawing attention to the investment policy and indicating the particular EEA States, local authorities, third countries or public international bodies in the securities of which the scheme intends to invest or has invested more than 35% of its scheme property.

3. (3)

   Where a UCITS scheme or EEA UCITS scheme invests principally in units in collective investment schemes, deposits or derivatives, or replicates a stock or debt securities index in accordance with COLL 5.2.31 R (Schemes replicating an index) or equivalent national measures implementing article 53 of the UCITS Directive, the firm must ensure that a marketing communication relating to the scheme contains a prominent statement drawing attention to the investment policy.

4. (4)

   Where the net asset value of a UCITS scheme or EEA UCITS scheme has, or is likely to have, high volatility owing to its portfolio composition or the portfolio management techniques that are or may be used, the firm must ensure that a marketing communication relating to the scheme contains a prominent statement drawing attention to that characteristic.

A firm must ensure that a marketing communication (other than a key investor information document or EEA key investor information document) relating to a feeder UCITS contains a statement that the feeder UCITS permanently invests at least 85% in value of its assets in units of its master UCITS.