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COBS 4.11 Record keeping: financial promotion

COBS 4.11.1R

  1. (1)

    A firm must make an adequate record of any financial promotion it communicates or approves, other than a financial promotion made in the course of a personal visit, telephone conversation or other interactive dialogue.

  2. (2)

    For a telemarketing campaign, a firm must make an adequate record of copies of any scripts used.

  3. (2A)

    If a firm communicates or approves an invitation or inducement to participate in, acquire, or underwrite a non-mainstream pooled investment which is addressed to or disseminated in such a way that it is likely to be received by a retail client:5

    1. (a)

      the person allocated the compliance oversight function in the firm must make a record at or near the time of the communication or approval6 certifying that the6 invitation or inducement complies with the restrictions set out in section 238 of the Act and in COBS 4.12.3 R, as applicable;5

    2. (b)

      the making of the record required in (a) may be delegated to one or more employees of the firm who report to and are supervised by the person allocated the compliance oversight function, provided the process for certification of compliance has been reviewed and approved by the person allocated the compliance oversight function no more than 12 months before the date of the 6invitation or inducement;5

    3. (c)

      when making the record required in (a), 6the firm must make a record of which exemption was relied on for the purposes of the invitation or inducement, together with the reason why the firm is satisfied that that exemption applies;5

    4. (d)

      where the firm relies on an exemption that requires investor certification and warnings to investors, 56the record required in (a) must include a record of any certificate or investor statement (as signed by the investor) and of any warnings or indications required by the exemption;5

    5. (e)

      if the exemption relied on is that for an excluded communication under COBS 4.12.4R (5), the firm must identify in the record required in (a)6 which type of financial promotion defined as an excluded communication corresponds to the 6invitation or inducement6being made, including, where applicable, which article in the Financial Promotion Order or in the Promotion of Collective Investment Schemes Order was relied on for the purposes of the invitation or inducement6, together with the reason why the firm is satisfied that the exemption applies;5

  4. (3)

    A firm must retain the record in relation to a financial promotion relating to:

    1. (a)

      a pension transfer, pension conversion, 7 pension opt-out or FSAVC, indefinitely;

    2. (b)

      a life policy, occupational pension scheme1, SSAS, personal pension scheme or stakeholder pension scheme, for six years;

    3. (c)

      MiFID or equivalent third country business, for five years; and

    4. (d)

      any other case, for three years.

  5. (4)

    4If a communication relates to a firm's MiFID or equivalent third country business, this section does not apply:4

    1. (a)

      to the extent that the communication is a third party prospectus;2

    2. (b)

      if it is image advertising;2

    3. (c)

      if it is a non-retail communication.2

  6. (5)

    4If a communication relates to a firm's business that is not MiFID or equivalent third country business, this section does not apply:4

    1. (a)

      to the extent that it is an excluded communication;

    2. (b)

      to the extent that it is a prospectus advertisement to which PR 3.3 applies;

    3. (c)

      if it is image advertising;

    4. (d)

      if it is a non-retail communication;2

    5. (e)

      [deleted]3

      3
    6. (f)

      to the extent that it relates to a pure protection contract that is a long-term care insurance contract2.

[Note: see article 51(3) of the MiFID implementing Directive]

COBS 4.11.2G

A firm should consider maintaining a record of why it is satisfied that the financial promotion complies with the financial promotion rules.

COBS 4.11.3G

If the financial promotion includes market information that is updated continuously in line with the relevant market, the record-keeping rules do not require a firm to record that information.