When a promotion is treated as an offer: what to do first
The answer
A promotional message becomes an offer the moment it invites the public to acquire a crypto-asset on stated terms, whatever label the campaign uses. Once that line is crossed, the issuer or the offeror must meet the public-offer requirements of Regulation (EU) 2023/1114 (MiCA) before the campaign continues, not after it has already run. Everything below assumes that line has already been crossed, or might have been.
The legal basis
Two instruments matter once a promotion is treated as an offer. One sets the duty itself; the other governs what happens once assets tied to that offer actually move.
| Instrument | What it governs | Relevance to a promotion |
|---|---|---|
| Regulation (EU) 2023/1114 (MiCA) | Public offers of crypto-assets and crypto-asset services | Sets the whitepaper and authorisation duties a promotion can trigger |
| Regulation (EU) 2023/1113 (TFR) | Information accompanying transfers of funds and certain crypto-assets | Applies once the promoted asset actually changes hands |
A promotion that describes the underlying token as already carrying a licence adds a separate layer of risk, covered on its own terms in A token claims to carry a licence tokenised rights. That question is worth checking early, because it changes what the whitepaper needs to say.
What changes once the label shifts
Before reclassification, marketing content answers to ordinary consumer-protection rules. After reclassification, it answers to Regulation (EU) 2023/1114 (MiCA) as well, and the two sets of duties do not always ask for the same wording. The promotional material and the whitepaper must say the same thing about risk, price mechanics, and issuer identity.
A supervisory authority that finds a mismatch can order the campaign suspended while the mismatch is resolved. If crypto-assets tied to the campaign have already been transferred between parties, the information duties in Regulation (EU) 2023/1113 (TFR) apply to those transfers regardless of how the promotion itself is later classified.
What to do, in order
- Freeze further distribution of the promotional material — marketing lead, immediately.
- Preserve every version of the material, with dates and channels — compliance officer.
- Map the material against the public-offer criteria in Regulation (EU) 2023/1114 (MiCA) — legal counsel.
- Confirm whether a compliant whitepaper already exists for the asset described — issuer or offeror.
- Notify the competent authority if the material has already reached the public — compliance officer.
- Check outstanding transfers against the information duties in Regulation (EU) 2023/1113 (TFR) — payment or crypto-asset service provider.
Who decides, and on what evidence
The competent authority supervising crypto-asset markets decides, based on the reach, content, and intended audience of the material — not on how the campaign describes itself. A message can be an offer even where the word "offer" never appears.
Increasingly, the evidence includes how the audience was selected, including whether targeting was automated rather than manual. A related question, addressed separately on this site, is When a regulator asks about automated decisions, and it arises whenever the promotion itself was steered by a system rather than a person.
If your situation differs
- If the promotion was addressed only to a closed group of qualified investors, some public-offer duties may not attach — but that exemption is narrow and depends on how the group was actually defined, not on how it was described afterwards.
- If the promotional material embeds a mark or design whose ownership was never formally transferred, the authorisation review can stall on a separate question, covered in When an assignment was never recorded, before it even reaches the offer question.
- If a group restructuring moved the marketing team to a different entity without moving the underlying rights, the offeror named in the whitepaper may not be the entity actually running the campaign — see A group restructuring moves the team, not the rights.
What this page does not cover
This page does not decide whether a specific campaign is, in fact, an offer — that judgement depends on the material itself and needs a case-by-case review. It does not draft or review the whitepaper. It does not replace a review of the underlying token structure, which is a separate question from how the token was promoted.
Related situations
A promotion that draws a complaint follows a different track once the regulator opens a file, covered in A complaint triggers a review authorisation.
Verified
Checked 07 January 2025 against Regulation (EU) 2023/1114 (MiCA) and Regulation (EU) 2023/1113 (TFR), both in force from 30 December 2024.
FAQ
What is the first step when a promotion is treated as an offer?
Stop further distribution and preserve every version of the material with dates and channels, before deciding anything else. That record is what any later review will rely on.
Which deadline is already running?
The clock that matters is attached to the whitepaper duty itself: once material reaches the public, the offer and a compliant whitepaper are meant to exist together, not one before the other. Regulation (EU) 2023/1114 (MiCA) leaves no separate grace window for closing that gap after the fact.
Who decides, and on what evidence?
The competent authority supervising crypto-asset markets decides, based on the reach, content, and intended audience of the promotional material — not on the label the campaign gave itself.