Italy and crypto regulation over marketing
Crypto regulation when it comes to influencer marketing
Steph Curry, Tom Brady and Kim Kardashian are just some of the celebrities who have recently announced crypto, NFT or exchange on their social profiles or through other channels. The use of celebrities and artists as part of crypto marketing operation has now become an industry practice.
The strategy is adopted by both larger companies and start-ups, who often use it influencer marketing as a form of promoting their projects through traditional social channels. However, some of these celebrities have had significant problems with industry authorities, particularly in the United States, due to the enforcement of regulations regarding the marketing of financial instruments or products.
Crypto regulation on financial instruments and marketing
From a regulatory perspective, in Italy the question of online marketing becomes relevant when tokens offered on a platform takes the form (or may take the form) of financial products or instruments. In this case, compliance with a number of obligations and restrictions is required with regard to offers via external means of communication, and thus including Internet.
Supervision of this activity is entrusted to CONSOB, which also has the task of prosecuting any activity involving the illegal offering of products or financial instruments through external means of communication.
At the same time, the regulations specify that pure advertising does not constitute an offer via remote communication and is therefore not subject to the restrictions summarized above.
Marketing of crypto assets and MiCA
The Ordinance on Crypto Markets (so-called MiCA), at least in its latest draft, also regulates marketing activities related to offers of crypto-assets. Specifically, the MiCA provisions require that the information provided in connection with promotional activities is fair, clear and not misleading and that it is consistent with that contained in the white paper relating to the product being offered.
The above was reiterated and confirmed by the European Commission in a recent reply given following the written question submitted in the context of the debate held by the European Parliament on the proposed Regulation (Question E-004040/2022).
Indeed, the Commission recalled that the provisions of the MiCA are sufficiently broad to cover conduct that may be perceived as advertising, promotion or marketing crypto. MiCA also allows supervisors to monitor crypto marketing operations.
Promotional service for crypto
In answering the aforementioned question, the European Commission also reminds us of the rules “crypto location service”, reminds that this service is defined as
“marketing, on behalf of or in the offeror’s or a party related to the offeror’s interest, of crypto to buyers.”
The crypto location service is brought under the umbrella of regulated services under MiCA. The consequence is the obligation for those who carry out crypto placement to not only follow the rules on placement method, but also to obtain a license according to the provisions of the MiCA.
Precautions Required in Influencer Marketing Activity
The application of the rules on offers using remote communication techniques of financial products or instruments, as well as in the future obtaining authorization under MiCA, is an important and particularly burdensome consequence for those who, who creators or influencersintends to carry out advertising or promotional activities with respect to crypto or platforms specializing in trading.
On the other hand, it is well known how important influencer marketing campaigns is now in the marketing of high-tech products or services. It is therefore important that influencer marketing activities stay within the boundaries of what is permitted under current legislation – as well as future MiCA regulation – so that they can be carried out legally.
