MiCA's Marketing Communications Provisions

The Markets in Crypto-Assets Regulation (MiCA) not only contains provisions on the content and form of crypto-asset white papers, it also contains provisions on marketing communications in connection with public offers and admission to trading of crypto-assets. 

Definition of Marketing Communications

Although the term 'marketing communications' is not defined in MiCA, ESMA Guidelines related to the cross-border distribution of funds provides a non-exhaustive list of documents that may be considered as marketing communications, namely:

• All advertising messages, regardless of the medium, including paper printed documents or information made available in electronic format, press articles, press releases, interviews, advertisements, documents made available on the internet, as well as webpages, video presentations, live presentations, radio messages or factsheets.
• Messages broadcasted on any social media platform.
• Marketing material addressed individually to investors or potential investors, as well as documents or presentations made available to the public on a website or in any other places.
• Communications by a third party and used for marketing purposes.

The Guidelines also provide examples of communications that should not be considered as marketing communications, such as:

• Legal and regulatory documents / information, such as the prospectus or the information which is to be disclosed to investors by law, the Memorandum & Articles of Association, By-Laws, Trust Deed or similar documents, or notice to a general meeting of shareholders.
• Corporate communications describing activities or some recent market developments – such as the disclosure of quarterly or half-yearly earnings, dividend announcements, organizational announcements or senior management changes.
• Short messages broadcast online, in particular on social media platforms (e.g. Twitter, LinkedIn, Facebook, Instagram, Tiktok, Youtube, Discord etc.), which only include a link to a webpage where a marketing communication is available, but which do not contain any specific information.

General Requirements

Under Article 7 MiCA, all marketing communications relating to a public offer or the admission to trading of crypto-assets (other than asset-referenced tokens or e-money tokens) must comply with the following requirements:

• The marketing communications must be clearly identifiable as such;
• The information given in the marketing communication must be fair, clear and not misleading.
• The following statement must be part of the marketing communication in a clear and prominent way: 'This crypto-asset marketing communication has not been reviewed or approved by any competent authority in any Member State of the European Union. The offeror of the crypto-asset is solely responsible for the content of this crypto-asset marketing communication.'

If a crypto-asset white paper exists, the information given in the marketing communication must be coherent with the information given in the crypto-asset white paper. The marketing communication must state that a crypto-asset white paper has been published and clearly indicate the address of the website of the offeror, the person seeking admission to trading, or the operator of a trading platform for the crypto-asset concerned. Additionally, the marketing communication must contain the telephone number and an email address to contact that person. Furthermore, if a crypto-asset white paper is required under MiCA (see here for more details), marketing communications must not be disseminated before the publication of the white paper. The ability to conduct market soundings is not covered by this prohibition. 

The same general requirements apply to marketing communications involving asset-referenced tokens and e-money tokens. In addition, such issuers must include in their marketing communications a clear and unambiguous statement concerning holders' right of redemption.

Notification, publication and modification

Marketing communications must be notified to the competent authorities upon request. The marketing communications do not have to be approved by the competent authorities before their publication. The competent authorities can assess the consistency of the marketing communications with the information given in the crypto-asset white paper. 

Offerors of crypto-assets and persons applying for admission to trading must publish their marketing communications on their publicly accessible website promptly and in any event prior to the start date of the public offering of the crypto-assets or the start date of the admission. The marketing notices must remain available on the website of the providers or persons seeking admission to trading for as long as the crypto-assets are held by the public.

Additionally, marketing communications have to be updated in the same way as the crypto-asset white paper. If there is a significant new factor, material mistake or material inaccuracy that is capable of affecting the assessment of the crypto-asset, the marketing communications have to be modified.