Does Regulation G apply to free writing prospectuses?
The application of Regulation G depends on the Exchange Act reporting status of the issuer; it does not depend on the nature of the communication in which the non-GAAP financial measure is included. Regulation G applies whenever an issuer that is required to file reports pursuant to Section 13(a) or 15(d) of the Exchange Act publicly discloses or releases material information that includes a non-GAAP financial measure. As such, Regulation G does not apply in the case of an issuer not so required to file reports, including non-reporting issuers conducting an initial public offering and voluntary filers. With regard to voluntary filers, see also Question 33 in the Division of Corporation Finance’s Frequently Asked Questions Regarding the Use of Non-GAAP Financial Measures (June 13, 2003).
