Promotional Materials to be Filed, Permitted Without Filing and Prohibited

PURPOSE: This rule prescribes the requirements for filing sales and advertising literature of the public offering of commodities and the types of advertising that are permitted and those that are prohibited. (1) Any advertisement, display, pamphlet, brochure, letter, article or communication published in any newspaper, magazine or periodical, or script of any recording, radio or television announcement, broadcast or commercial to be used or circulated in connection with the sale and promotion of a public offering of commodities will be subject to the following requirements and restrictions: (A) All sales and advertising literature and promotional material, other than that exempted by this rule, shall be governed by the following: 1. The applicant shall file with the commissioner, at least five (5) days before its intended dissemination, one (1) copy of each item of literature or material; 2. If not disallowed by the commissioner by written notice or otherwise within three (3) business days from the date filed, the literature or material may be disseminated; 3. No formal approval of the literature or material shall be issued by the commissioner; and 4. The disseminator of the literature or material shall be responsible for the accuracy and reliability of the literature and material and its conformance with the Missouri Uniform Securities Act and this rule; and (B) The following devices or sales presentation, and their use, will be deemed deceptive practices that cheat or defraud investors: 1. Comparison charts or graphs showing a distorted, unfair or unrealistic relationship between the commodity’s past performance and that of another commodity or investment media; 2. Layout, format, size, kind and color of type used so as to attract attention to favorable or incomplete portions of the advertising matter, or to minimize less favorable, modified or modifying portions necessary to make the entire advertisement a fair and truthful representation; 3. Statements or representations which predict future profit, success, appreciation, performance or otherwise relate to the merit or potential of the commodities unless the statements or representations clearly indicate that they represent solely the opinion of the publisher; 4. Generalizations, generalized conclusions, opinions, representations and general statements based upon a particular set of facts and circumstances unless those facts and circumstances are stated and modified or explained by additional facts or circumstances as are necessary to make the entire advertisement a full, fair and truthful representation; 5. Sales kits or film clips, displays or exposures, which, alone or by sequence and progressive compilation, tend to present an accumulative or composite picture or impression of certain, or exaggerated potential, profit, safety, return or assured or extraordinary investment opportunity or similar benefit to the prospective purchaser; 6. Distribution of any nonfactual or inaccurate data or material by words, pictures, charts, graphs or otherwise, based on conjectural, unfounded, extravagant or flamboyant claims, assertions, predictions or excessive optimism; and 7. Any package or bonus deal, prize, gift, gimmick or similar inducement, combined with or dependent upon the sale of some other product, contract or service, unless that unit or combination has been fully disclosed and specifically described and identified in the application as the security being offered. (2) The following forms and types of advertising are permitted without the necessity for filing or prior authorization by the commissioner, unless specifically prohibited: (A) So-called tombstone advertising, containing no more than the following information: 1. Name and address of broker-dealer; 2. Identity, type or grade of commodity; 3. Per unit offering price and amount of offering; and 4. Brief, general description of commodity; and (B) Dissemination of any data incorporated in the disclosure statement (15 CSR 3059.190), so long as the use of that material, out of context, does not tend to detract from, distort, supersede or express a different meaning of the representations or disclosures contained in the statement. (3) Any person who prepares, distributes or causes to be issued or published any sales literature which is knowingly inaccurate, false, misleading or tending to mislead in any material respect or otherwise in violation of the provisions of these rules may be held responsible and accountable in any administrative or civil proceeding arising under sections 409.800 409.863, RSMo or this chapter. AUTHORITY: sections 409.810, 409.818 and 409.836, RSMo 1986.* This rule was previously filed as 15 CSR 30-60.150. Emergency rule filed Oct. 2, 1985, effective Oct. 12, 1985, expired Feb. 9, 1986. Original rule filed Aug. 22, 1986, effective Jan. 30, 1987. *Original authority: 409.810, RSMo 1985; 409.818, RSMo 1985; 409.836, RSMo 1985.