FCA to ban the promotion of UCIS and certain close substitutes to ordinary retail investors
The Financial Conduct Authority (FCA) has published final rules to ban the promotion of Unregulated Collective Investment Schemes (UCIS) and certain close substitutes (together to be known as Non-Mainstream Pooled Investments (NMPIs) to the vast majority of retail investors in the UK. The rules mean that, in the retail market, promotions of these riskier and often very complex fund structures will generally be restricted to sophisticated investors and high net worth individuals for whom these products are more likely to be suitable.
The ban follows on from extensive work undertaken by the Financial Services Authority (FSA), which found that only one in every four advised sales of UCIS to retail customers was suitable and that many promotions breached the existing UCIS marketing restrictions. Concerns have also been identified in relation to products, which are close substitutes for UCIS and in relation to which the existing marketing restriction had no effect. A number of NMPIs have failed completely in recent years, leading to customers losing their total investment.
The final rules follow a consultation period in which the FCA engaged extensively with all stakeholders and received detailed feedback. The majority of respondents agreed with the general aim of the proposals to protect ordinary retail investors from the risks arising from inappropriate promotion of NMPIs. However, the FCA has taken into consideration a number of responses about the definition of NMPIs and refined those to focus more tightly on products posing the greatest risk of inappropriate distribution to ordinary retail investors. The FCA has also considered concerns about requirements applicable to marketing to high net worth or sophisticated retail clients and amended the proposals accordingly.
Following analysis of the feedback, a number of products now lie out of scope of the marketing restrictions. These include exchange traded products, overseas investment companies that would meet the criteria for investment trust status if based in the UK, real estate investment trusts and venture capital trusts. Enterprise investment schemes and seed enterprise investment schemes, unless structured as UCIS, are also outside the scope of the rules. The marketing of special purpose vehicles pooling investment primarily in shares and bonds is also not restricted. Firms still need to ensure promotional communications about these products are fair, clear and not misleading, and if advice is given they must ensure any recommendation to invest is suitable to the client.
The following investments will be subject to marketing restrictions: units in qualified investor schemes (QIS), traded life policy investments, units in UCIS; and securities issued by SPVs pooling investment in assets other than listed or unlisted shares or bonds.
The FCA will continue to review market developments and, should it discover similar issues in the future that create the risk of significant potential for consumer detriment, particularly where arbitrage is taking place to avoid the marketing restrictions, it may need to consider an extension of scope of the rules. If necessary, the FCA can make a temporary product intervention rule to do this before consultation.
Christopher Woolard, director of policy risk & research, said:
The FCA is also monitoring the market in relation to products, which are not pooled investments. The industry is beginning to introduce to the retail market a range of novel securities – including contingent convertibles (CoCos), building society deferred shares and similar instruments – that were once exclusively offered to institutional investors, and which carry risks unfamiliar to and inappropriate for many ordinary retail investors. The FCA intends to consult on the introduction of a new marketing restriction in relation to these types of products.
Notes for editors
2. Examples of underlying assets sometimes held in UCIS and similar products include fine wines, crops, timber, and speculative financial instruments and traded life policies. These assets may sometimes appear to offer better returns with less volatility than more usual investment types but they are often actually higher risk investments. The risks they carry are often esoteric and difficult to assess. For example, they may be illiquid, difficult to value and prices may be volatile. Governance controls can also be weaker than on more mainstream investment vehicles, which may increase the risk of product failure and loss of capital for investors.
3. Previously the FSA undertook a significant amount of work to improve standards. The FSA published guidance to firms to improve standards, including detailed findings of our file assessments and guidance on good and poor practice. Last year the FSA issued over 250 letters to firms active in this market to repeat our concerns and highlight the key regulatory requirements that apply.
4. A list of recent enforcement notices against firms for providing unsuitable advice on UCIS is available.
5. On the 1 April 2013 the Financial Conduct Authority (FCA) became responsible for the conduct supervision of all regulated financial firms and the prudential supervision of those not supervised by the Prudential Regulation Authority (PRA).
6. The FCA has an overarching strategic objective of ensuring the relevant markets function well. To support this it has three operational objectives: to secure an appropriate degree of protection for consumers; to protect and enhance the integrity of the UK financial system; and to promote effective competition in the interests of consumers.