The general requirement under the Act is that a person MUST NOT advertise or publicly promote an “offer of interests” in a managed investment scheme where participation is available to “retail clients”, UNLESS an appropriate PDS is available [section 736], and a Form SF88 [PDS in-use notice] has been lodged with ASIC.
If an “offer of interests” in a horse racing scheme is to be the subject of a PDS approved by a lead regulator under the terms of the ASIC Instrument, then the PDS MUST be approved prior to the commencement of any advertising or public promotion. Similarly, any advertising or public promotion MUST also be lodged with and approved by a lead regulator prior to publication.
The promoter of an “offer of interests” that requires a PDS MUST comply with the provisions of section 1018A [Advertising or other promotional material for product must refer to PDS] when undertaking any advertising or public promotion. Such advertising or public promotion MUST specify:
- the issuer (or issuer and seller) of the shares and refer to the PDS;
- that a PDS is available; and
- that a prospective investor should consider the PDS when deciding whether to acquire the interest(s).
Failure to comply with the provisions of section 1018A(1) is an offence (section 1311 [General penalty provisions]).
There are no regulations applying to the advertising or public promotion of an “offer of interests” in a Horse racing scheme that is a “wholesale scheme”, although any advertisement, or public promotion, should clearly specify both the nature of the scheme, and that participation is available only to “wholesale clients”.