PR 3.3 Advertisements
Application
PR 3.3.2 R to PR 3.3.4 R only apply to an offer, or to an admission to trading of transferable securities, for which:
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(1)
a prospectus is required to be made available to the public under section 85 of the Act; or
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(2)
a person elects to have a prospectus under section 87 of the Act. [ Note: article 15.1 PD ]
Advertisements
An advertisement relating to an offer or to an admission to trading must not be issued unless:
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(1)
it states that a prospectus has been or will be published and indicates where investors are, or will be, able to obtain it;
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(2)
it is clearly recognisable as an advertisement;
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(3)
information in the advertisement is not inaccurate, or misleading; and
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(4)
information in the advertisement is consistent with the information contained in the prospectus, if already published, or with the information required to be in the prospectus, if the prospectus is published afterwards. [ Note: articles 15.1, 15.2 and 15.3 of PD ]
To comply with PR 3.3.2 R, a written advertisement should also contain a bold and prominent statement to the effect that it is not a prospectus but an advertisement and investors should not subscribe for any transferable securities referred to in the advertisement except on the basis of information in the prospectus.
Other information disclosed must be consistent with prospectus
All information concerning an offer or an admission to trading disclosed in an oral or written form (even if not for advertising purposes), must be consistent with that contained in the prospectus. [ Note: article 15.4 PD ]
Article 34 of the PD Regulation sets out a non-exhaustive list of the types of advertisement covered by the advertising provisions:
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Dissemination of advertisements |
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Advertisements related to an offer to the public of securities or to an admission to trading on a regulated market may be disseminated to the public by interested parties, such as issuer, offeror or person asking for admission, the financial intermediaries that participate in the placing and/or underwriting of securities, notably by one of the following means of communication: |
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(1) |
Addressed or unaddressed printed matter; |
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(2) |
Electronic message or advertisement received via a mobile telephone or pager; |
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(3) |
Standard letter; |
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(4) |
Press advertising with or without order form; |
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(5) |
Catalogue; |
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(6) |
Telephone with or without human intervention; |
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(7) |
Seminars and presentations; |
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(8) |
Radio; |
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(9) |
Videophone; |
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(10) |
Videotext; |
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(11) |
Electronic mail; |
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(12) |
Facsimile machine (fax); |
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(13) |
Television; |
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(14) |
Notice; |
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(15) |
Bill; |
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(16) |
Poster; |
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(17) |
Brochure; |
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(18) |
Web posting including internet banners. |
1Article 34 of the PD Regulation also provides for the inclusion of a warning where no prospectus is required in accordance with the PD:
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Article 34 |
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Where no prospectus is required in accordance with Directive 2003/71/EC, any advertisement shall include a warning to that effect unless the issuer, the offeror or the person asking for admission to trading on a regulated market chooses to publish a prospectus which complies with Directive 2003/71/EC and this Regulation. |
NOTE:The European Commission has published a draft Regulation amending the PD Regulation here: http://ec.europa.eu/internal_market/securities/prospectus/index_en.htm
The FSA will review prospectuses in accordance with the authoritative version of the PD Regulation, including any amendments made by the final published version of the above Regulation, which is the version that is published in the Official Journal of the European Union, from the date it is stated to be in force.
The FSAHandbook will be updated to reflect the final changes in due course.
Please also note that references to the PD Regulation in the FSAHandbook have been amended to take account of the amendments to the PD Regulation made by Regulation (EU) No 486/2012 which was published in the Official Journal on 9 June 2012.