Spain approves the regulation on advertising of cryptoassets

The Spanish Securities Markets Commission (Comisión Nacional del Mercado de Valores, CNMV) has approved Circular 1/2022¹ on cryptoasset advertising, which was published on 17-1-2022 and will come into force on 17-2-2022.

Spain is the first country in the European Union to regulate cryptoasset advertising, and therefore this regulation may become a reference for other European supervisors.

The main purpose of the circular is that the cryptoasset advertising offers truthful, understandable and not misleading content, and that it visibly warns about the risks of cryptoassets.

The circular regulates advertising on cryptoassets that are the object of investment addressed, explicitly or implicitly, to investors with residence in Spain. It is presumed in any case that:

• an advertising activity is addressed to investors in Spain when is carried out through physical means in Spain, through Spanish media —including web pages/domains— and all those that are in Spanish or official languages in Spain, unless it contains measures that attest that the services or products provided are not addressed and are not accessible to investors in Spain, and
• a cryptoasset is offered or attention is drawn to it as a possible object of investment when its acquisition is promoted or any reference is made to its profitability, price or value, current or future, that could suggest an opportunity to invest in such cryptoasset, even though it may eventually be used as a means of exchange.

The most relevant aspects of the circular are summarised below.

Scope

The circular applies to the following persons:

• Providers of services on cryptoassets when carrying out advertising on cryptoassets.
• Providers of advertising services, including influencers —natural persons who are perceived as influencers or experts in social networks or audiovisual media— when they disseminate promoted content.
• Any other persons that, acting on their own initiative or on behalf of a third party, carry out advertising on cryptoassets.

Services on cryptoassets are defined as professional activities on cryptoassets such as the following:

• Trading of cryptoassets on platforms.
• Purchase, sale or exchange of cryptoassets.
• Advice on cryptoassets.
• Management of cryptoassets portfolios.
• Any form of remuneration of cryptoassets.
• Any other activities that have as their object the marketing of cryptoassets.

Negative scope

The advertising on the following is excluded from the scope of the circular: 

• financial instruments, which will continue being subject to Circular 2/2020²;
• cryptoassets that are not the object of investment;
• cryptoassets whose only use is the digital access to a product or service, and are accepted only by its issuer or by a limited set of commercial suppliers with which the issuer maintains a contractual relationship, provided that no revaluation expectations are offered, and the volume offered and conditions of the offer are in line with the effective rights that the cryptoasset would offer;
• NFT (non-fungible tokens) when they represent collectible assets, intellectual property works or assets whose sole purpose is their use in games or competitions, so that they are not massively offered as a mere investment object;
• white papers explaining a new issuance;
• corporate campaigns, provided that:
  • no reference is made to cryptoassets or the provision of services thereon, or
  • any advertising message included on its website complies with the rules of the circular;
• campaigns for analysts or institutional investors;
• publications by analysts that are not sponsored or promoted;
• technical seminars, courses and conferences on cryptoassets that no promote investment in cryptoassets; if they are provided free of charge or for a symbolic price and are promoted or held by the regulated entities or parties related to them, it shall be presumed that they are intended to promote such investment and shall be subject to the regime of the circular.

Advertising control

Commercial communications should include the risks of the product and the following warnings (in Spanish):

«Investment in cryptoassets is not regulated, may not be suitable for retail investors and the entire amount invested may be lost».

In addition, a link should be added to the additional information required in the annexes of the circular, which determines the identification of the risks of the product (high-risk investment product, risks specific to the technology, legal risks), with the following text:

«It is important to read and understand the risks of this investment which are explained in detail in this location».

When the medium used allows only one indication, reference shall be made to the site where information on the risks can be found and to the importance of reading this information.

Supervision of advertising activity

Supervisory role of the CNMV

The advertising activity addressed to investors in Spain does not require prior notification to the CNMV, except in the case of massive advertising campaigns.

In the course of its supervisory function, the CNMV may require regulated entities to provide specific information on advertising campaigns or pieces in order to assess compliance with the circular, which they must provide within three (3) working days. This term is two (2) working days when the requirement is to cease or rectify the advertising.

Another novelty is that covered entities will have to keep a record with the following information and documentation regarding the current advertising campaign and those carried out in the last two (2) years:

• General data of the campaign.
• Specific information on the advertising pieces.
• Identification of advertising service providers and the advertising contracts or agreements entered into.

Prior communication of massive campaigns

Massive advertising campaigns, as defined in the circular, are those addressed at more than 100,000 people, and the campaign documentation must be sent to the CNMV at least ten (10) working days before the start of the campaign.

If the CNMV does not respond within this term, the campaign can be initiated, although this does not imply that it considers the campaign to be compliant with the circular.

Entry into force

The circular will enter into force one month after its publication, i.e. on 17-2-2022.

Failure to comply with the circular qualifies as a serious infringement under the Spanish Securities Market Law.

¹ _{Circular 1/2022, de 10 de enero, de la Comisión Nacional del Mercado de Valores, relativa a la publicidad sobre criptoactivos presentados como objeto de inversión.}

²_{Circular 2/2020, de 28 de octubre, de la Comisión Nacional del Mercado de Valores, sobre publicidad de los productos y servicios de inversión.}