As a result of a new regulation, any advertisement commercialising virtual coins in Belgium and distributed to consumers must take into account a number of obligations consisting of both substantive rules and mandatory disclosures. These new regulations, formulated by the Belgian Financial Services and Markets Authority (FSMA), appeared in the Belgian Official Gazette on 17 March 2023 and will enter into force on 17 May 2023.
Who must observe these rules?
Any person who, for remuneration on a professional or occasional basis, advertises virtual currencies in Belgium, which are distributed to consumers. Influencers are, in particular, captured under this new regulation.
What do these conditions entail?
The conditions observe both content rules and mandatory disclosures.
Regarding the content rules, advertising may not be misleading or inaccurate. Furthermore, these rules must also comply with the following conditions:
- Any advertising must be clearly identifiable as such;
- Advertising must be coherent with the mandatory warnings (see below), and may not conceal, dilute or obscure them;
- Advertising must not emphasise the potential benefits of the virtual currency without also giving a correct, clear and balanced indication of the risks, limitations or conditions associated with the virtual currency in question;
- Advertising should not emphasise features, nor can it make comparisons that are irrelevant or of little relevance to an understanding of the nature and risks of the virtual currency in question;
- The advertisement must not contain any statement about the future value or return of the virtual currency concerned; and
- The information must be presented in non-technical language that is understandable to consumers.
In addition, every advertisement must firstly include the statement: " Virtual currencies, real risks. The only guarantee in crypto is risk." Secondly, advertisements must also include the warning proposed by the regulation in the advertisement, and thirdly it must contain the statement required by the regulation when the natural or legal person appearing in the advertisement (or whose image is otherwise used in that advertisement) is compensated for his cooperation or receives any other benefit in return.
Moreover, the mandatory information to be mentioned must be presented in a legible, visible and comprehensible manner and in the same form as the rest of the advertising and in the same language as the advertising itself. It must be included at the beginning of each advertisement or at the top of a website page.
Furthermore, the FSMA must be notified at least ten days before the distribution of "mass campaigns" (i.e. the distribution of advertising to at least 25,000 consumers such as, among others, advertising visible from public highways or infrastructure accessible to the public, websites, distribution via social networks by persons with at least 25,000 followers or when a social network is paid for its distribution) in the form by which it will be distributed to consumers in Belgium.
Benoît Vandervelde
Partner, Brussels
Anaïs Casteur
Associate, Brussels
Florence Berchem
Associate, Brussels
