Conduct is at the core of the Financial Markets Conduct Act 2013 (FMC Act). Underpinning the breadth of the FMC Act are the fair dealing provisions, which set out the core standards of behaviour that those operating in the financial markets must comply with. Part 2 of the FMC Act requires “fair dealing” in relation to financial products and services.
This webpage provides an overview of why the fair dealing and stop order provisions are important, who must comply with these requirements, the principles the FMA applies when assessing compliance, our enforcement approach and how you can report possible breaches.
Conduct is at the core of the Financial Markets Conduct Act 2013 (FMC Act). Underpinning the breadth of the FMC Act are the fair dealing provisions, which set out the core standards of behaviour that those operating in the financial markets must comply with.
Part 2 of the FMC Act requires “fair dealing” in relation to financial products and services. The fair dealing requirements are broad principles that prohibit:
In addition to the fair dealing provisions are the stop order provisions, found in Part 8 of the FMC Act. A stop order is a regulatory tool that the FMA can use to stop or prevent advertising or disclosure that confuses, or is likely to confuse consumers or investors, on matters that influence their investment decision. For example, the FMA could issue a stop order to require an issuer to cease offering financial products, if the FMA was satisfied that content in the product disclosure statement is ‘likely to confuse’ investors.
The FMA can issue a stop order without any need to go to court. More information about stop orders is set out below.
A key difference between the fair dealing provisions and the stop order provisions is the reference to disclosure that is ‘likely to confuse’ – this is a lower threshold than ‘likely to mislead’.
The fair dealing provisions are fundamental to promoting the confident and informed participation of businesses, investors, and consumers in the financial markets. If investors and consumers are given information (or incomplete information) that is likely to mislead or confuse, or if they are subject to false, misleading or deceptive conduct, financial markets do not function fairly or transparently, and the purposes of the FMC Act cannot be achieved.
Ultimately, confident participation in the financial markets can only exist if an intrinsic level of market integrity exists, which the fair dealing and stop order provisions serve to facilitate.
The fair dealing provisions apply widely with few exceptions, including to conduct:
Persons "involved" in the conduct relating to a financial product or service may also be liable under the fair dealing provisions, even if they did not directly engage in any misleading or deceptive conduct themselves. For example, directors and senior managers of a financial product or service provider can be liable for misleading conduct carried out by the provider if they aided, induced, or otherwise are directly or indirectly a party to the misleading conduct.
The stop order provisions also apply to providers of financial products and services, albeit in a more limited set of prescribed circumstances.
We expect all providers of financial products and services to develop and embed the principles underpinning the fair dealing and stop order provisions into their risk management processes – consider what processes need to be in place to ensure that customers are not liable to be confused or misled and to ensure that all representations have a sound basis in fact. In addition, we encourage directors, senior managers and those involved with providing financial products and services to also consider how their conduct can help investors and consumers make appropriate financial decisions taking into account their particular circumstances (such as vulnerable customers).
Whether conduct or disclosure is likely to mislead or confuse depends on the overall impression created as perceived by the investor or consumer. This means that:
Confusing or misleading conduct extends beyond positive actions or positive statements – it also includes omissions. The omission can be either deliberate or inadvertent. Therefore, it is not a defence to “do or say nothing” if silence or partial disclosure (e.g. cherry picking) is likely to leave an overall misleading or confusing impression on the consumer.
The fair dealing provisions generally require representations to be substantiated, although some exceptions exist (such as for representations in a disclosure document or a register entry). Substantiation requires having a reasonable basis at the time the representation is made. Anecdotal evidence, unsupported opinions and assumptions do not constitute a reasonable basis. We are particularly interested in representations regarding the nature, suitability and characteristics of a financial product or service.
A representation remains unsubstantiated at the time it was made, even if the representation turns out to be true or is subsequently substantiated.
Contact us if you believe the fair dealing or stop order provisions have been breached in relation to financial products and services. Please note that consumer credit contracts are regulated by the Commerce Commission.
The FMA has a variety of enforcement options available to address false, misleading, deceptive or confusing behaviour. The action taken will depend on the severity and level of misconduct.
For example, there may be instances where engagement through dialogue is sufficient to address a breach. Alternatively, this may extend to formal feedback letters, monitoring reports, issuance of a public warning, direction order or stop order.
A stop order, which is required to be published (see here for an example), can be issued in some circumstances where the spread of information is likely to confuse investors on material matters (i.e. matters which would influence a reasonable investor’s decision to invest in the financial product or obtain financial services). It prohibits the issuer from continuing the relevant activity to protect investors and the integrity of the market. For example, the FMA can issue a stop order to prevent or stop the issuer of a financial product from:
Failure to comply with a stop order can result in a fine of up to $300,000.
If the FMA considers that it is in the public interest to do so, it may issue an interim stop order whilst it considers the grounds for a stop order.
More egregious breaches may result in the FMA taking court action.
The fair dealing provisions are civil liability provisions. This means the courts have the discretion to issue civil liability orders, such as a pecuniary penalty order or compensatory order, for a breach of a fair dealing provision. In addition, civil liability orders can be made against not just the person in contravention, but also against those involved in the contravention. The aim is both to sanction the issuer for its misleading conduct and, where necessary, to seek redress for affected parties.
For more information on the enforcement options available to the FMA, please refer to our Regulatory Response Guidelines.
Fair dealing guidance specific to initial coin offerings
If you provide a ‘financial service’ related to cryptoassets, you must comply with the fair dealing provisions in Part 2 of the FMC Act. These are broad principles that prohibit you from engaging in misleading conduct or making false, deceptive or unsubstantiated statements.