3. The Financial Promotion Order is amended as follows.
4. In article 2 (interpretation: general), in paragraph (1), after the definition of “qualifying credit”, insert—
““qualifying cryptoasset” has the meaning given by paragraph 26F of Schedule 1;
“registered person” has the meaning given by article 73ZA;”.
5. In article 51 (associations of high net worth or sophisticated investors)—
(a)the existing text becomes paragraph (1);
(b)after paragraph (1), insert—
“(2) The exemption in paragraph (1) does not apply if the communication relates to a qualifying cryptoasset.”.
6. In article 61(3) (sale of goods and supply of services)—
(a)after sub-paragraph (c), omit “or”;
(b)after sub-paragraph (d), insert—
“; or
(e)a qualifying cryptoasset.”.
7. In Part 6, after article 73 (advice centres), insert—
73ZA.—(1) The financial promotion restriction does not apply to any communication which relates only to one or more qualifying cryptoassets and which is communicated—
(a)by a registered person; or
(b)on behalf of a registered person provided that—
(i)the communication is a non-real time communication; and
(ii)the registered person prepared the content of the communication.
(2) Subsection (1) does not apply where a registered person makes or directs the communication, or causes it to be made or directed, in breach of—
(a)a requirement imposed by the FCA under section 55L (imposition of requirements by FCA) of the Act; or
(b)a direction given under section 137S (financial promotion rules: directions given by FCA) of the Act, as those provisions have been applied and modified by the Schedule to the Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) Order 2023.
(3) In this article, a “registered person” means a person who is—
(a)a cryptoasset exchange provider or a custodian wallet provider as defined in regulation 14A (cryptoasset exchange providers and custodian wallet providers) of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017;
(b)included on the register maintained by the FCA pursuant to regulation 54(1A) (duty to maintain registers of certain relevant persons) of those Regulations; and
(c)not an authorised person.”.
8. In Schedule 1, in Part 1 (controlled activities)—
(a)in paragraph 3 (dealing in securities and contractually based investments)—
(i)in the heading, after “securities”, insert “, qualifying cryptoassets”;
(ii)in sub-paragraph (1), after “structured deposits”, insert “, qualifying cryptoassets”;
(b)in paragraph 4 (arranging deals in investments)—
(i)in sub-paragraph (1), after paragraph (aa), insert—
“(ab)a qualifying cryptoasset;”;
(ii)in sub-paragraph (2), after “(aa),”, insert “(ab),”;
(c)in paragraph 5(a) (managing investments), after “structured deposit”, insert “, a qualifying cryptoasset”;
(d)in paragraph 7(1)(b)(i) (advising on investments), after “structured deposit”, insert “, a qualifying cryptoasset”.
9. In Schedule 1, in Part 2 (controlled investments), after paragraph 26E (consumer hire agreements) insert—
26F.—(1) Subject to sub-paragraph (3), a “qualifying cryptoasset” is any cryptoasset which is—
(a)fungible; and
(b)transferable.
(2) For the purposes of sub-paragraph (1)(b), the circumstances in which a cryptoasset is to be treated as “transferable” include where—
(a)it confers transferable rights; or
(b)a communication made in relation to the cryptoasset describes it as being transferable or conferring transferable rights.
(3) A cryptoasset does not fall within sub-paragraph (1) if it is—
(a)a controlled investment falling within any of paragraphs 12 to 26E or, so far as relevant to any such investment, paragraph 27;
(b)electronic money;
(c)fiat currency;
(d)digitally issued fiat currency; or
(e)a cryptoasset that—
(i)cannot be transferred or sold in exchange for money or other cryptoassets, except by way of redemption with the issuer; and
(ii)can only be used in a limited way and meets one of the following conditions—
(aa)it allows the holder to acquire goods or services only from the issuer;
(ab)it is issued by a professional issuer and allows the holder to acquire goods or services only within a limited network of service providers which have direct commercial agreements with the issuer; or
(ac)it may be used only to acquire a very limited range of goods or services.
(4) In this paragraph—
“cryptoasset” means any cryptographically secured digital representation of value or contractual rights that—
can be transferred, stored or traded electronically, and
uses technology supporting the recording or storage of data (which may include distributed ledger technology);
“digitally issued fiat currency” means fiat currency issued in digital form;
“electronic money” has the meaning given by regulation 2(1) (interpretation) of the Electronic Money Regulations 2011(1).”.
10.—(1) The provisions of the Act identified in the Schedule to this Order apply, subject to any modifications set out in that Schedule, in relation to registered persons.
(2) Section 1A of the Act applies as if the exercise of functions by the FCA under the provisions applied, with or without modification, by the Schedule to this Order were functions conferred on it by or under the Act.
S.I. 2011/99; relevant amending instruments are S.I. 2017/752, 2018/1201.