Advertising by Commodity Pool Operators, Commodity Trading Advisors, and the Principals Thereof, 8106-8109 [E7-3122]

Agencies

• Commodity Futures Trading Commission

[Federal Register Volume 72, Number 36 (Friday, February 23, 2007)]
[Rules and Regulations]
[Pages 8106-8109]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-3122]


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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 4

RIN 3038-AC35


Advertising by Commodity Pool Operators, Commodity Trading 
Advisors, and the Principals Thereof

AGENCY: Commodity Futures Trading Commission.

ACTION: Final rules.

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SUMMARY: The Commodity Futures Trading Commission (Commission or CFTC) 
has amended Regulation 4.41, which governs advertising by commodity 
pool operators (CPOs), commodity trading advisors (CTAs), and the 
principals thereof, (1) To restrict the use of testimonials, (2) to 
clarify the required placement of the prescribed simulated or 
hypothetical performance disclaimer, and (3) to include within the 
regulation's coverage advertisement through electronic media 
(Amendments). This action is in furtherance of the Commission's 
longstanding view that all advertisements by CPOs, CTAs, and their 
principals must not be fraudulent, deceptive or misleading.

EFFECTIVE DATE: March 26, 2007.

FOR FURTHER INFORMATION CONTACT: Barbara S. Gold, Associate Director, 
or Peter B. Sanchez, Staff Attorney, Division of Clearing and 
Intermediary Oversight, Commodity Futures Trading Commission, 1155 21st 
Street, NW., Washington, DC 20581, telephone numbers: (202) 418-5450 or 
(202) 418-5237, respectively; facsimile number: (202) 418-5528; and 
electronic mail: bgold@cftc.gov or psanchez@cftc.gov, respectively.

SUPPLEMENTARY INFORMATION:

I. Background

A. Regulation 4.41

    Part 4 of the Commission's regulations governs the operations and 
activities of CPOs and CTAs.\1\ In particular, Regulation 4.41 pertains 
to advertising by CPOs, CTAs, and the principals \2\ thereof, an issue 
first addressed by the Commission over 25 years ago. The Commission 
originally proposed that CPOs, CTAs, and their principals could not 
advertise their actual past performance results in a format other than 
that which the CPO or CTA was required to use in its Disclosure 
Document,\3\ and that the presentation of simulated or hypothetical 
performance of a CPO, CTA, or the principals thereof would be 
prohibited.\4\ In response to the comments received and its further 
deliberations on these proposals, the Commission adopted less 
restrictive advertising regulations.\5\
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    \1\ 17 CFR Part 4 (2006). The Commodity Exchange Act (Act), 7 
U.S.C. 1 et seq. (2000), and the Commission's regulations issued 
thereunder may be accessed through the Commission's Web site, at 
https://www.cftc.gov/cftc.cftclawreg.htm.
    \2\ The definition of the term ``principal'' is set forth in 
Regulation 4.10(e)(1), which cross-references the definition of the 
term in Regulation 3.1(a). An example of a principal of a CPO 
organized as a corporation would be the corporation's chief 
executive officer.
    \3\ Regulations 4.21 and 4.24-4.26 and 4.31 and 4.34-4.36 
concern the Disclosure Document that registered CPOs and CTAs, 
respectively, must prepare, deliver, and file.
    \4\ 45 FR 51600 (Aug. 4, 1980).
    \5\ 46 FR 26004 (May 8, 1981).
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    With respect to the presentation of actual past performance, the 
Commission explained that it had adopted in Regulation 4.41(a) ``a rule 
that leaves to the discretion of the [CPO, CTA, or principal] 
advertising performance results--whether actual, simulated or 
hypothetical--the format of that presentation, so long as that format 
is not false, misleading or deceptive.'' \6\ With regard to the 
presentation of simulated or hypothetical performance results, the 
Commission explained that it had adopted in Regulation 4.41(b) ``a rule 
that allows the presentation of those results, provided that the 
presentation is accompanied by the statement prescribed in the rule,'' 
whose purpose was ``to alert prospective customers to the limitations 
inherent in simulated and hypothetical past performance

[[Page 8107]]

results.'' \7\ The Commission also noted the scope of new Regulation 
4.41--that it applied to both oral and written communications and 
regardless of whether a CPO or a CTA was exempt from registration under 
the Act.\8\
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    \6\ While acknowledging that it was not possible to identify 
every advertisement that was prohibited by new Regulation 4.41, the 
Commission nonetheless gave notice in the Federal Register release 
announcing the adoption of the rule that it would consider the 
following, non-exclusive list of advertisements, to be prohibited:
    (1) References only to successful trades, if during the same 
time period, trades which were unsuccessful were also recommended or 
executed; (2) references to the results during a specific time 
period, if the results claimed were not fairly representative of 
results achieved for comparable periods; (3) suggestions, assurances 
or claims of profit potential that do not also fairly present the 
possibility of loss; (4) statements of opinions or predictions which 
are not clearly labeled as such or which have no reasonable basis in 
fact; and (5) failure to disclose whether, and to what extent, fees, 
commissions and other expenses are reflected in the past performance 
results. Id. at 26012.
    \7\ Id.
    \8\ Section 4m(1) of the Act, 7 U.S.C. 6m(1) (2000), generally 
requires the registration of CPOs and CTAs. Regulation 4.13 provides 
exemptions from CPO registration for certain persons, and Sections 
4m(1) and 4m(3) and Regulation 4.14 provide exemptions from CTA 
registration for certain other persons.
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B. The Proposal

    Based upon its experience with the operation of Regulation 4.41 
over the course of the past 25 years, on August 23, 2006, the 
Commission published for comment proposed amendments to the regulation 
(Proposing Release).\9\ Specifically, the Commission proposed to amend 
Regulation 4.41: (1) To restrict the use of testimonials; (2) to 
clarify the required placement of the prescribed simulated or 
hypothetical performance disclaimer; and (3) to include within the 
regulation's coverage advertisement through electronic media 
(Proposal).
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    \9\ 71 FR 49387. The Proposing Release may be accessed through 
the Commission's Web site, at https://www.cftc.gov/files/foia/
fedreg06/foi060823a.pdf.
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C. The Comments on the Proposal

    The Commission received six comment letters in response to the 
Proposal, as follows: \10\ one from a registered futures association; 
one from a bar association; one from a futures industry trade 
association; and three from unregistered CTAs.\11\ The first three 
commenters supported the Proposal, stating that it would further the 
goals of Regulation 4.41. The CTAs, however, questioned the 
Commission's authority to adopt and maintain Regulation 4.41 
altogether.
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    \10\ The comments on the Proposal similarly may be accessed 
through the Commission's Web site, at https://www.cftc.gov/foia/
comment06/foi06_005_1.htm.
    \11\ It appears that each of these CTAs is exempt from 
registration pursuant to Regulation 4.14(a)(9), which provides an 
exemption from registration for a CTA who does not direct client 
accounts or who does not provide commodity interest trading advice 
based on, or tailored to, the commodity interest or cash market 
positions or other circumstances or characteristics of particular 
clients.
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    Specifically, they objected to Regulation 4.41 on the grounds that 
it violates the First Amendment as applied to some CTAs. However, as 
the Commission explained in the Proposing Release, false, deceptive or 
misleading commercial speech is not protected by the First Amendment, 
and disclosure requirements to ensure that commercial speech is not 
false, deceptive or misleading are a constitutionally permissible form 
of regulation.\12\ Thus, the Commission continues to believe that, 
because Regulation 4.41 applies to forms of communication used by CTAs 
and CPOs for marketing their services, the regulation is subject to the 
constitutional standards for commercial speech and it complies with 
those standards.
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    \12\ 71 FR at 49389, citing Zauderer v. Office of Disciplinary 
Counsel, 471 U.S. 626, 638 (1985), and Pearson v. Shalala, 164 F.3d 
650, 655 (D.C. Cir. 1999).
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    In light of the foregoing and the specific comments the Commission 
received on the Proposal, which are discussed more fully below, the 
Commission is adopting the revisions to Regulation 4.41 as proposed. In 
the Proposing Release, the Commission provided a detailed explanation 
of each revision it had proposed to make. Accordingly, the scope of 
this Federal Register release generally is restricted to responding to 
the comments received on the Proposal. The Commission invites 
interested persons to read the Proposing Release for a fuller 
discussion of the purpose of each of the amendments contained in the 
Proposal.

II. Responses to the Comments

A. New Regulation 4.41(a)(3): Testimonials on Actual Past Performance 
of CPOs, CTAs, and Their Principals

    As proposed and as adopted, Regulation 4.41(a)(3) requires 
advertisements of the actual past performance of a CPO, CTA, or a 
principal thereof that refer to a testimonial to prominently disclose 
specified information about the testimonial--e.g., that it may not be 
representative of the experience of other clients. As the Commission 
noted, it modeled this provision upon Rule 2210(d)(2) of the National 
Association of Securities Dealers, Inc. (NASD), which sets similar 
limits on the use of testimonials in advertisements and other marketing 
materials applicable to NASD members--i.e., persons who are registered 
as securities broker-dealers under the Securities Exchange Act of 1934 
(BDs).\13\
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    \13\ 71 FR at 49388 n.9.
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    One commenter questioned why the Commission proposed to regulate 
the use of testimonials along the lines of the NASD requirement for 
BDs, as opposed to adopting an outright prohibition against their use--
as the Securities and Exchange Commission has done with respect to 
persons registered or required to be registered as investment 
advisers.\14\ The same commenter asked the Commission to explain its 
rationale for how it approached the use of testimonials--e.g., whether 
the Commission had based its approach on problems the Commission had 
observed or on requests for clarification from CPOs and CTAs.
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    \14\ See 17 CFR 275.206(4)-1(a)(1) (2006).
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    The purpose of this amendment, as with all of the Amendments, is to 
``modernize and clarify'' the Commission's regulations concerning 
communications with the public--which was the same purpose of the NASD 
in proposing its Rule 2210(d)(2).\15\ While the Commission based this 
amendment on the observations of its staff, those observations were not 
of a nature so as to justify the adoption of an outright ban on 
testimonials at this time. In addition, the Commission notes that, as 
proposed and as adopted, Regulation 4.41(a)(3) applies to all CPOs and 
CTAs, not solely to those CPOs and CTAs subject to registration.
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    \15\ See 68 FR 27116 at 27117 (May 19, 2003).
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B. Amended Regulation 4.41(b): The Statement That Must Accompany 
Simulated or Hypothetical Performance of CPOs, CTAs, and Their 
Principals

1. Regulation 4.41(b)(1): The Text of the Statement
    Regulation 4.41(b)(1) prohibits the presentation of simulated or 
hypothetical performance results of a CPO, CTA, or principal thereof 
unless that presentation is accompanied by either: (1) The statement 
prescribed by the regulation; or (2) a statement prescribed by a 
registered futures association. The National Futures Association (NFA) 
currently is the sole registered futures association, and it has 
prescribed such a statement in its Compliance Rule 2-29(c).\16\ As 
proposed, the Commission has amended Regulation 4.41(b)(1) so as to 
clarify the meaning of the term ``accompanied by'' in the context of 
the statement prescribed by the regulation.\17\
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    \16\ All of NFA's rules can be accessed through NFA's Web site, 
www.nfa.futures.org.
    \17\ The Commission additionally has conformed the reference to 
performance in the statement to the references throughout Regulation 
4.41(b), so the statement now refers to ``simulated or 
hypothetical'' performance (whereas previously it referred to 
``hypothetical or simulated'' performance).
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    One of the commenters on the Proposal questioned the need for 
alternative statements under the regulation. In response, the 
Commission notes that the availability of alternative statements 
provides a meaningful option for compliance with the regulation. 
Indeed, in the more than ten years following NFA's adoption of

[[Page 8108]]

Compliance Rule 2-29(c),\18\ the Commission has not been made aware of 
any compliance or other issues arising from the existence of 
alternative cautionary statements in Regulation 4.41(b)(1).\19\ 
Accordingly, the Commission has not adopted the recommendation of this 
commenter that it abandon its own prescribed statement in favor of the 
prescribed NFA statement.
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    \18\ See NFA Notice to Members, Notice I-95-24 (Dec. 28, 1995).
    \19\ The Commission also notes that the use of alternative 
cautionary statements is not restricted to the presentation of 
simulated or hypothetical performance results. Commission Regulation 
1.55(b) sets forth the risk disclosure statement to be made to 
customers by futures commission merchants (FCMs) and introducing 
brokers (IBs). Regulation 1.55(a) provides, however, that the 
Commission may approve a risk disclosure statement authorized by one 
or more foreign regulatory agencies or self-regulatory 
organizations. In 1994, the Commission approved the use of an 
alternative risk disclosure for use by FCMs and IBs for trading in 
futures and options in the United States, the United Kingdom, and 
Ireland. 59 FR 34376 (Jul. 5, 1994). The Commission similarly is 
unaware of any compliance or other problems arising from the 
existence of such dual general risk disclosures.
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    Two commenters recommended that the Commission adopt an exception 
to its prescribed statement where advertisements are directed solely to 
persons who meet the definition of ``qualified eligible person'' (QEP) 
in Commission Regulation 4.7.\20\ They claimed adoption of such an 
exception would be consistent with NFA Compliance Rule 2-29(c)(6). 
However, based upon its review of the record of the adoption of the NFA 
rule, the Commission has concluded that the NFA rule does not provide 
for any such exception.
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    \20\ Regulation 4.7 makes relief from otherwise applicable 
disclosure, reporting and recordkeeping requirements available to 
registered CPOs and CTAs whose participants and clients are solely 
QEPs--e.g., certain Commission and SEC registrants, ``knowledgeable 
employees'' and ``qualified purchasers,'' and accredited investors 
who have investments with an aggregate market value of $2 million.
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    In its Notice to Members announcing the adoption of amendments to, 
and a formal interpretation of, Compliance Rule 2-29(c), NFA stated:

    Compliance Rule 2-29(c) and the Interpretative Notice do not 
apply to promotional materials directed exclusively to [QEPs] as 
defined in CFTC Regulation 4.7. However, CFTC Regulation 4.41(b) 
requires CPOs and CTAs to provide all potential pool participants or 
clients with either the disclaimer in NFA Compliance Rule 2-29(c) or 
the shorter disclaimer in CFTC Regulation 4.41(b)(1)(i) if they are 
using hypothetical performance results. Therefore, promotional 
materials directed to QEPs by CPOs and CTAs should continue to 
include the disclaimer in CFTC Regulation 4.41(b)(i) (unless they 
include the disclaimer in Compliance Rule 2-29(c)) (emphasis in the 
original).\21\
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    \21\ See supra n. 18.
    This NFA advice was issued pursuant to the Commission's letter 
approving the amendments and interpretation, which stated:
    Under recently-amended Commission Regulation 4.41, persons who 
present commodity interest hypothetical trading results in their 
promotional material must include in such materials either the 
disclaimer specified in Commission Regulation 4.41(b)(1)(i) or a 
disclaimer which complies with the rules promulgated by a registered 
futures association pursuant to Section 17(j) of the Act. 
Accordingly, NFA should inform its members that while new NFA 
Compliance Rule 2-29(c)(4) would not require members to provide 
[QEPs] with any disclaimer under Rule 2-29, members would be 
required to provide QEPs with a disclaimer pursuant to Commission 
Regulation 4.41(b)(1)(i). Letter from Jean A. Webb, Secretary of the 
Commission, to Daniel J. Roth, NFA's General Counsel, dated Dec. 12, 
1995.

    Moreover, given the nature of simulated or hypothetical performance 
results, the Commission does not believe that it is appropriate to 
extend the approach of fewer disclosures to QEPs in this instance. Due 
to their financial sophistication and/or wealth, QEPs may justifiably 
be presumed to be better equipped to obtain information regarding 
industry professionals and to scrutinize the risks and rewards for 
particular investments. However, it is not clear that QEPs, solely by 
virtue of their being QEPs, are able to identify each instance in which 
otherwise unexplained performance results are simulated or 
hypothetical.
    Accordingly, the Commission has not adopted the recommendation of 
these commenters.
2. Regulation 4.41(b)(2): The Meaning of ``In Immediate Proximity''
    Regulation 4.41(b)(2) requires that the statement prescribed by 
Regulation 4.41(b)(1) be ``prominently disclosed'' if the simulated or 
hypothetical performance that is presented is other than oral. In order 
to make clear that simulated or hypothetical performance is clearly 
identified as such, as proposed and as adopted, Regulation 4.41(b)(2) 
specifies that the prescribed disclaimer also must be ``in immediate 
proximity to the simulated or hypothetical performance being 
presented.''
    One commenter suggested that the proposed amendment lacked 
specificity as to the term ``in immediate proximity.'' The commenter 
requested that the Commission either define the term ``in immediate 
proximity'' or provide examples of how compliance with that requirement 
would be assessed in practice.
    In determining what constitutes ``in immediate proximity'' for the 
purpose of Regulation 4.41(b), the Commission does not believe that a 
bright-line test is practical for all circumstances. Rather, the 
Commission believes that, in determining what would constitute ``in 
immediate proximity'' to the simulated or hypothetical performance 
being advertised, the person providing the prescribed statement should 
use its best judgment. If it would be clear to someone viewing the 
simulated or hypothetical performance results that the statement is 
intended to refer to those particular performance results, then the 
statement would be ``in immediate proximity'' to the performance 
results.\22\ Thus, placing the statement on the cover page of a 
document would not be sufficient, because it would be on a different 
page from the simulated or hypothetical performance being shown. 
Similarly, if simulated or hypothetical performance results appear on 
several pages, the statement should appear on a sufficient number of 
pages so as to leave no doubt as to the nature of the performance 
results as they appear on each of those several pages.
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    \22\ Additional guidance regarding unacceptable practices can be 
gleaned from past enforcement actions concerning violations of 
Section 4o of the Act and Regulation 4.41. See, e.g., CFTC v. 
Vartuli, 228 F.3d 94 (2d Cir. 2000) (prescribed statement appears on 
a separate page from the hypothetical trading results), and CFTC v. 
Heffernan, 245 F.Supp.2d 1276 (S.D. Ga. 2003) (statement on a 
webpage, but not included in the original advertisement containing 
the hypothetical performance).
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II. Related Matters

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) \23\ requires that agencies, 
in proposing regulations, consider the impact of those regulations on 
small businesses. The Commission has previously established certain 
definitions of ``small entities'' to be used by the Commission in 
evaluating the impact of its regulations on such entities in accordance 
with the RFA.\24\
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    \23\ 5 U.S.C. 601 et seq.
    \24\ 47 FR 18618 (Apr. 30, 1982).
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    With respect to CTAs, the Commission has previously stated that it 
would evaluate within the context of a particular rule proposal whether 
all or some affected CTAs would be considered to be small entities and, 
if so, the economic impact on them of the proposal.\25\ Moreover, the 
Commission stated that CPOs would be considered small entities if they 
are exempt from registration by virtue of Regulation 4.13(a).\26\ The 
Commission does not believe that the Amendments will have a significant 
impact on affected CTAs,

[[Page 8109]]

CPOs, and their principals. This is because the only burden that will 
be imposed by the Amendments will be in furtherance of the obligation 
to comply with the antifraud provisions of Section 4o of the Act when 
presenting the past performance of CTAs, CPOs, and their principals--
whether by way of actual, simulated or hypothetical performance or 
through the use of testimonials. Assuming arguendo, however, that 
compliance with Section 4o will constitute a significant burden, the 
burden is neither new nor additional, because the Amendments are 
consistent with the Commission's longstanding interpretation of Section 
4o as applicable to all advertisements by CTAs, CPOs, and their 
principals, including advertisements that are viewed electronically, 
and with the requirement that such advertisements must not be false or 
misleading.
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    \25\ Id. at 18620.
    \26\ Id.
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    The Commission did not receive any comments relative to its 
analysis of the application of the RFA to the Proposal.

B. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) \27\ imposes certain 
requirements on Federal agencies (including the Commission) in 
connection with their conducting or sponsoring any collection of 
information as defined by the PRA. The Amendments do not require a new 
collection of information on the part of any entities.
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    \27\ 44 U.S.C. 3501 et seq.
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    The Commission did not receive any comments relative to its 
analysis of the application of the PRA to the Proposal.

C. Cost-Benefit Analysis

    Section 15(a) of the Act \28\ requires the Commission to consider 
the costs and benefits of its action before issuing a new regulation 
under the Act. By its terms, Section 15(a) does not require the 
Commission to quantify the costs and benefits of a new regulation or to 
determine whether the benefits of the proposed regulation outweigh its 
costs. Rather, Section 15(a) simply requires the Commission to 
``consider the costs and benefits'' of its action.
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    \28\ 7 U.S.C. 19(a) (2000).
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    Section 15(a) further specifies that costs and benefits shall be 
evaluated in light of five broad areas of market and public concern: 
Protection of market participants and the public; efficiency, 
competitiveness, and financial integrity of futures markets; price 
discovery; sound risk management practices; and other public interest 
considerations. Accordingly, the Commission could in its discretion 
give greater weight to any one of the five enumerated areas and could 
in its discretion determine that, notwithstanding its costs, a 
particular regulation was necessary or appropriate to protect the 
public interest or to effectuate any of the provisions or to accomplish 
any of the purposes of the Act.
    The Commission did not receive any comments relative to its cost-
benefit analysis of the Proposal.

List of Subjects in 17 CFR Part 4

    Advertising, Commodity pool operators, Commodity trading advisors, 
Commodity futures, Commodity options, Customer protection, Reporting 
and Recordkeeping.

0
For the reasons presented above, the Commission hereby amends chapter I 
of Title 17 of the Code of Federal Regulations as follows:

PART 4--COMMODITY POOL OPERATORS AND COMMODITY TRADING ADVISORS

0
1. The authority citation for part 4 continues to read as follows:

    Authority: 7 U.S.C. 1a, 2, 4, 6b, 6c, 6l, 6m, 6n, 6o, 12a, and 
23.


0
2. Section 4.41 is amended by removing ``or'' at the end of paragraph 
(a)(1), removing the period and adding a semi-colon and ``or'' at the 
end of paragraph (a)(2), adding new paragraph (a)(3), and revising 
paragraphs (b)(1)(i), (b)(2), and (c)(1) to read as follows:


Sec.  4.41  Advertising by commodity pool operators, commodity trading 
advisors, and the principals thereof.

    (a) * * *
    (3) Refers to any testimonial, unless the advertisement or sales 
literature providing the testimonial prominently discloses:
    (i) That the testimonial may not be representative of the 
experience of other clients;
    (ii) That the testimonial is no guarantee of future performance or 
success; and
    (iii) If, more than a nominal sum is paid, the fact that it is a 
paid testimonial.
    (b) * * *
    (1) * * *
    (i) The following statement: ``These results are based on simulated 
or hypothetical performance results that have certain inherent 
limitations. Unlike the results shown in an actual performance record, 
these results do not represent actual trading. Also, because these 
trades have not actually been executed, these results may have under-or 
over-compensated for the impact, if any, of certain market factors, 
such as lack of liquidity. Simulated or hypothetical trading programs 
in general are also subject to the fact that they are designed with the 
benefit of hindsight. No representation is being made that any account 
will or is likely to achieve profits or losses similar to these being 
shown.'' ; or
* * * * *
    (2) If the presentation of such simulated or hypothetical 
performance is other than oral, the prescribed statement must be 
prominently disclosed and in immediate proximity to the simulated or 
hypothetical performance being presented.
    (c) * * *
    (1) To any publication, distribution or broadcast of any report, 
letter, circular, memorandum, publication, writing, advertisement or 
other literature or advice, whether by electronic media or otherwise, 
including information provided via internet or e-mail, the texts of 
standardized oral presentations and of radio, television, seminar or 
similar mass media presentations; and
* * * * *

    Issued in Washington, DC, on February 16, 2007, by the 
Commission.
Eileen A. Donovan,
Acting Secretary of the Commission.
 [FR Doc. E7-3122 Filed 2-22-07; 8:45 am]
BILLING CODE 6351-01-P