When marketing is treated as an offer: what to do first

Once a promotional message names a specific token, states a price or invites purchase, it stops being general marketing and becomes an offer to the public under Regulation (EU) 2023/1114 (MiCA). The clock for disclosure duties starts on the day the message goes out, not on the day of the sale.

Basis

The trigger sits in Regulation (EU) 2023/1114 (MiCA). A communication that identifies the crypto-asset and invites a transaction counts as an offer to the public, whatever the channel used to send it. A landing page, a pitch deck, a social media post, or a term sheet sent to a single prospective investor all qualify equally, once the content names the asset and points toward a transaction.

The obligation attaches to the person who makes the offer, not to the agency that drafted the copy or the platform that hosted it. Responsibility follows the issuer, even when the wording originated with a marketing vendor working from a brief the issuer approved.

Owned media and paid media are treated the same way. A post on the issuer's own account carries the same weight as a paid placement, because the test looks at content, not at the channel's cost or reach. The same applies whichever category the token falls into within the regulation's scheme — the trigger is the communication, not the label attached to the asset afterwards.

Practical consequence

Once the offer threshold is crossed, a crypto-asset white paper becomes mandatory before the offer continues, together with notification to the competent authority. A sale that proceeds without either exposes the issuer to withdrawal claims from retail buyers and to a stop order from the regulator.

Purchases made by a retail buyer under an offer that has not been properly notified can carry a right to withdraw, set out in the same regulation. That right sits on top of any contractual terms the issuer has drafted, and it cannot be removed by a clause in the subscription agreement, however carefully the clause is worded.

The practical risk is timing, not substance. A campaign paused for a short period while the white paper is finished and filed costs far less than a campaign that ran to completion and then has to be unwound, refunded, and explained to a regulator afterwards.

There is also a governance consequence. Once the freeze is called, the board or the equivalent decision-maker should be told the same day, because the exposure now sits at company level, not only with the campaign that triggered it.

What to do first

1. Freeze the campaign. The marketing team stops any further distribution on the same day the trigger is identified, across every channel it controls, including scheduled posts that have not yet gone out.
2. Preserve the evidence trail. Legal counsel collects screenshots, the distribution list, and the vendor log, including any subprocessors engaged for local delivery, so the sequence of events can be reconstructed later if the regulator asks.
3. Classify the token. Counsel determines whether the token falls within MiCA at all, or whether an exemption applies given the specific audience that was reached and the wording actually used.
4. Draft or update the white paper. The person responsible for the offer prepares the disclosure document required before the offer can resume, working from the classification already agreed with counsel.
5. Notify the competent authority. The filing is made before the offer restarts, not after, and the confirmation of receipt is kept with the rest of the file for later reference.
6. Brief anyone still in contact with prospects. Sales staff are told, in writing, not to confirm any transaction until the freeze is formally lifted, and the instruction itself is dated and kept.
7. Log the decision for audit. A short internal memo records who froze the campaign, when, and on what basis, so the file does not rely on memory later.

Who decides

None of these three questions is decided by the marketing team or by the vendor who ran the campaign. Both can supply facts; neither can supply the classification, and neither should be asked to.

If your situation is different

• If the message went out only to a closed list of qualified counterparties, the offer-to-the-public trigger may not apply. Verify the exemption before assuming it does — the list itself has to meet the qualifying test, not just be described as private.
• If a subprocessor pushed the campaign to a wider list than instructed, the freeze still applies to the issuer. The vendor's overreach becomes a separate contractual matter, handled alongside the regulatory response, not instead of it.
• If holders are already asking for redemption on the strength of the marketing that has now been frozen, treat the two situations as linked but run each on its own track, with its own file and its own timeline.
• If the white paper already exists for an earlier, narrower offer, check whether the frozen campaign expanded the audience or the terms enough to require an update rather than a fresh document.

What this page does not cover

This page does not draft the white paper itself, does not set any fee connected with the notification, and does not resolve a commercial dispute with the marketing vendor over the cost of the campaign that has to be pulled. It does not decide, on its own, whether a specific token is in scope of MiCA at all — that classification depends on the token's design and is a separate piece of analysis, not a checklist item.

It also does not cover the drafting of the withdrawal notice sent to buyers, or the accounting treatment of any refund. Those steps follow once the classification and the filing are settled, and each carries its own timeline.

Sources and limits

Checked on the date this page was published. The only source used for the legal trigger described above is Regulation (EU) 2023/1114 (MiCA), cited by its official short form. No national implementing measure is referenced here, because none is confirmed in our register for this specific situation, and a paraphrase in its place would not survive a check.

The evidence trail described in step two is assembled the same way across engagements; how local delivery partners and their logs are documented is set out in Subprocessors, including local delivery partners and the evidence.

Where the counterparty behind the campaign sits in Latvia, the underlying source coverage for that check is set out separately: Counterparty in Latvia: sources, route and limits.

The white paper itself, once produced, is checked against the same kind of register: Document report latvia sources, route and limits.

The jurisdiction assessment that decides which competent authority applies follows its own limits, described here: Jurisdiction in Latvia and its limits.

Related situations

A campaign that crosses into an offer often runs alongside pressure from people who already hold the token. See When holders demand redemption: what to do first for that parallel track, and keep the two files separate even when the same campaign caused both.

FAQ

What is the first step when marketing is treated as an offer?
Freeze distribution the same day the trigger is identified, across every channel including scheduled posts, then preserve the evidence trail before anything else moves.

Which deadline is already running?
The clock for the white paper and the notification starts on the day the communication went out, under Regulation (EU) 2023/1114 (MiCA), not on the day of any completed sale or the day counsel is consulted.

Who decides, and on what evidence?
The competent authority of the home member state decides, based on the content of the communication itself and on the completeness of the disclosure filed once the offer resumes, not on the intent behind the campaign.

— Aleks Vaher, AURELIS