1. September 28, 2014
Office of Chief Counsel
Division of Corporation Finance
U.S. Securities and Exchange Commission
100 F Street, N.E. Washington, DC 20549
Via Web: https://www.sec.gov/forms/corp_fin_noaction
REQUEST FOR “NO ACTION” LETTER
Re: 1933 Securities Act, Section 2(a)(3) Definition of offer or sale of a security
To Whom It May Concern:
I am an individual. It is my understanding “An individual or entity who is not certain whether a
particular product, service, or action would constitute a violation of the federal securities law may
request a 'no-action' letter from the SEC staff.” Quoting from http://www.sec.gov/answers/noaction.htm
I am writing to you today to request a No Action Letter confirming that my co-founders, my company
and I possess the legal right to engage in pre-offering “testing the waters” communications, including
the solicitation of “Expressions of Interest” (EOI) from members of the general public, in advance of
the effective date of the Commission's final Rules pursuant to Title III and Title IV of the JOBS Act.
My No Action Letter request does not reference Securities Act Section 5, as no “offer” of securities to
the general public is being proposed prior to the date on which final JOBS Act Rules become effective.
Your final Rulemaking pursuant to Title III of the JOBS Act will authorize me, my co-founders and my
company to offer and sell unregistered securities to members of the general public on the condition that
all “offers” and “sales” thereof occur by way of a registered “funding portal” and comply with the
Commission's new Crowdfunding exemption, which will preempt state registration requirements. See:
http://www.sec.gov/comments/s7-09-13/s70913.shtml
http://www.gpo.gov/fdsys/pkg/FR-2013-11-05/pdf/2013-25355.pdf
http://www.sec.gov/rules/proposed/2013/33-9470.pdf
Your final Rulemaking pursuant to Title IV of the JOBS Act will authorize me, my co-founders and my
company to offer and sell unregistered securities to members of the general public on the condition that
such persons are “qualified purchasers” as defined by your final Rule. As the Commission is aware,
you have proposed to define “qualified purchasers” to mean “all offerees of securities in a Regulation A
offering and all purchasers in a Tier 2 offering” however the final Rule may define qualified purchaser
more narrowly, so as to not permit sales to certain unsophisticated members of the general public. See:
http://www.sec.gov/comments/s7-11-13/s71113.shtml
http://www.gpo.gov/fdsys/pkg/FR-2014-01-23/pdf/2013-30508.pdf
http://www.sec.gov/rules/proposed/2013/33-9497.pdf
Under the current Code of Federal Regulations section 230.254, “solicitation of interest” documents or
materials are permitted in advance of a planned Regulation A Offering, on condition that the so-called
“testing the waters” solicitation materials are provided to the Commission not later than the time of first
use, and they must contain a required legend or disclaimer as detailed in Section 230.254(b)(2). See:
http://www.gpo.gov/fdsys/pkg/CFR-2001-title17-vol2/xml/CFR-2001-title17-vol2-sec230-254.xml
P.O. Box 636, Kurtistown, HI 96760 Mobile +1.808.769.1147 http://www.foodbiome.com

2. It is my belief the Commission cannot prohibit me, my co-founders nor my company from soliciting
the general public seeking “Expressions of Interest” (EOI) in advance of the effective date of the final
JOBS Act Title III and Title IV Rules because, by definition, under Section 2(a)(3) of the Securities Act
such EOI solicitations are not “offers” of any security. Although resembling “testing the waters” under
Regulation A, the fact is that alternatives to Regulation A will be available soon under the JOBS Act. It
does not appear to me, therefore, that the existing Section 230.254 CFR is applicable to JOBS Act EOI.
I have reviewed the previously-issued No Action Letters under Section 2(a)(3) and it seems clear to me
from this and my other analysis that the Commission should concur that there is in fact no “offer” of
securities being made in the circumstance I am describing. My proposed actions should not prompt the
Commission to recommend enforcement action against me, my co-founders or my company when we
solicit “JOBS Act” EOI from members of the general public. Responses to pre-offer communications
will merely enable us to follow-up with interested parties in the future, after the final JOBS Act Rules
become effective, when “offers” of unregistered securities to non-Accredited investors are allowed.
My proposed EOI communications are not Rule 135 notices of proposed registered offerings, because I
do not intend to file a registration statement for my future Offerings. Rather, I plan only to receive EOI
responses from members of the general public who wish to inform me that they might be interested in a
future offer of my unregistered securities when my offers are permitted under the final JOBS Act Rules.
My proposed EOI communications are also not, strictly-speaking, “testing the waters” communications
as defined by current Code of Federal Regulations under Section 230.254, because those Regulation A
“solicitation of interest” documents or materials apply only to a proposed Regulation A Offering. My
company does not intend to conduct a Regulation A Offering, so “testing the waters” with “solicitation
of interest” documents or materials pursuant to Section 230.254 would be inappropriate. Although it is
possible that we will decide to conduct a Regulation A+ Offering under Title IV of the JOBS Act, my
proposed EOI communications are not meant to commence the selling process for such an Offering.
As the Commission is aware, under your present Regulation D Rule 506(c) there is no requirement of
any kind for disclaimers or legends as would be required of “testing the waters” Regulation A activities.
I am already authorized to publicize literally anything I wish, without even referencing Rule 506(c) and
provided that I do not sell unregistered securities to non-Accredited investors my public “offers” under
Rule 506(c) are explicitly allowed, subject to the normal anti-fraud provisions of federal and state law.
I can already generally solicit and generally advertise my unregistered securities to receive contacts
from people who are not Accredited investors, without violating Section 5 of the Securities Act and
without being required to comply with Section 230.254. Absent a No Action Letter from your office,
however, I must presume that non-Accredited contact information received in reply to my Rule 506(c)
advertising efforts must be destroyed and thus I will need to start over anew with “testing the waters”
communications or Title III-compliant “funding portal” advertising efforts later, after final JOBS Act
Rules are in effect. It makes no sense for SEC to require me to ignore EOI from non-Accredited people.
I do not wish to purge such contacts from my records if my Rule 506(c) general solicitation or general
advertising attracts non-Accredited people. More specifically, I respectfully request a No Action Letter
affirming my communications are not “offers” as defined by Section 2(a)(3) provided I use the words
“JOBS Act” together with “Expressions of Interest” and provided I do not accept money if any is sent.
Thank you for your prompt attention to my request.
Emily Coombs
Co-Founder of FoodBiome.com
P.O. Box 636, Kurtistown, HI 96760 Mobile +1.808.769.1147 http://www.foodbiome.com