California Code of Regulations
Title 10 - Investment
Chapter 5 - Insurance Commissioner
Subchapter 3 - Insurers
Article 12 - Disability Insurance Advertisements
Section 2536.2 - Advertisements of Benefits Payable, Losses Covered or Premiums Payable
Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) Deceptive Words, Phrases or Illustrations Prohibited.
GUIDELINE 2536.2(a)(1)
This section prohibits words, phrases or illustrations which create deception to the reader by omission or commission. The following examples are illustrations of the prohibitions created by the Subsection:
GUIDELINE 2536.2(a)(2)
This Subsection recognizes that certain words and phrases in advertising may have a tendency to mislead the public as to the extent of benefits under an advertised policy. Consequently, such terms (and those specified in the rule do not represent a comprehensive list but only examples) must be used with caution to avoid any tendency to exaggerate benefits and must not be used unless the statement is literally true in every instance. The use of the following phrases based on such terms or having the same effect must be similarly restricted: "pays hospital, surgical, etc., bills," "pays dollars to offset the cost of medical care," "safeguards your standard of living," "pays full coverage," "pays complete coverage," "pays for financial needs," "provides for replacement of your lost paycheck," "replaces income" or "emergency paycheck." Other phrases may or may not be acceptable depending upon the nature of the coverage being advertised. For example, the phrase "this policy will help to replace your income" is acceptable in advertising for loss-of-time coverage but is unacceptable in advertising for hospital confinement (including "hospital indemnity") coverage.
This rule also prohibits words or phrases which exaggerate the effect of benefit payment on the insured's general well-being, such as "worry-free savings plan," "guaranteed savings," "financial peace of mind" and "you will never have to worry about hospital bills again."
Advertisements for policies designed to supplement Medicare benefits are unacceptable if they fail to disclose that no hospital confinement benefits will be payable for that portion of a Medicare benefit period for which Medicare pays all hospital confinement expenses, currently 60 days, other than the initial deductible, if the policy so provides. The length of said period must be stated in days.
GUIDELINE 2536.2(a)(3)
Explanations must not minimize nor describe restrictive provisions in a positive manner. Negative features must be accurately set forth. Any limitation on benefits excluding pre-existing conditions also must be restated under a caption concerning exclusions or limitations, notwithstanding that the pre-existing condition exclusion has been disclosed elsewhere in the advertisement. (See Guidelines for Section 2536.2(c) for additional comments on pre-existing conditions.)
GUIDELINE 2536.2(a)(4)
The words, phrases, illustrations and concepts listed are illustrations of the words, phrases, illustrations and concepts prohibited by the Subsection which create the impression of a profit or gain to be realized by the insured when hospitalized.
Illustrations which depict paper currency or checks showing an amount payable are deceptive and misleading and are not permissible.
A hospital indemnity advertisement shall not include language such as "pay for a trip to Florida," "buy a new television" or otherwise imply that the insured will make profit on hospitalization.
An advertisement which uses words such as "extra," "special" or "added" to describe any benefit in the policy is unacceptable.
Although the Subsection prohibits the use of the phrase "tax free," it does not prohibit the use of complete and accurate terminology explaining the Internal Revenue Service rules applicable to the taxation of accident and sickness benefits. The IRS rules provide that the premiums paid for and the benefits received from hospital indemnity policies are subject to the same rules as loss of time premiums and benefits and are not afforded the same favorable tax treatment as premiums for expense incurred hospital, medical and surgical benefit coverages. (Currently, Rev. Rul. 68-451 and Rev. Rul. 69-154.) Prominence either by caption, lead-in, bold-face or large type shall be given in any manner to any statements relating to the tax status of such benefits.
GUIDELINES 2536.2(a)(5) through 2536.2 (a)(7)
These Subsections are self-explanatory.
GUIDELINE 2536.2(a)(8)
This Subsection should be applied in conjunction with Section 2536.7.
Phrases such as "we cut costs to the bone" or "we deal direct with you so our costs are lower" shall not be used.
(b) Exceptions, Reductions and Limitations.
GUIDELINE 2536.2(b)(1)
The extent of disclosure required by this rule depends upon the type of advertisement. An institutional advertisement as defined in Section 2535.3(g) is not subject to this rule. An advertisement which is an invitation to inquire as defined in Section 2535.3(h) which mentions either the dollar amount of benefit payable and/or the period of time during which the benefit is payable must include a reference to the existence of exceptions, reductions and limitations in the manner required by Section 2535.3(h). An advertisement which is an invitation to contract as defined in Section 2535.3(i) must recite the exceptions, reductions and limitations as required by the rule and in a manner consistent with Section 2536.
If an exception, reduction or limitation is important enough to use in a policy, it is of sufficient importance that its existence in the policy should be referred to in the advertisement regardless of whether it may also be the subject matter of a provision of Insurance Code Sections 10350.1 through 10350.12 and 10369.2 through 10369.12.
Some advertisements disclose exceptions, reductions and limitations as required, but the advertisement is so lengthy as to obscure the disclosure. Where the length of an advertisement has this effect, special emphasis must be given by changing the format to show the restrictions in a manner which does not minimize, render obscure or otherwise make them appear unimportant.
GUIDELINE 2536.2(b)(2)
This Subsection imposes the same disclosure standards as the preceding paragraph with respect to policy provisions providing for waiting, elimination, probationary or similar time periods between the effective date of the policy and the effective date of coverage under the policy or a time period between the date a loss occurs and the date benefits begin to accrue for such loss. The comments under Subsection 2536.2(b)(1) are equally applicable to this Subsection. Where a policy has waiting, elimination, probationary or other such time periods, such provisions must be stated in negative terms. This requirement is comparable to that contemplated in Section 2536.2(a)(3) as to exceptions, reductions and limitations.
An advertisement for a policy designed to supplement Medicare benefits is unacceptable if it fails to disclose that no hospital confinement benefits will be payable for that portion of a Medicare benefit period, currently 60 days, for which Medicare pays all hospital confinement expenses other than the initial deductible, if the policy so provides. The length of said period must be stated in days.
GUIDELINE 2536.2(b)(3)
This Subsection is similar to Section 2536.2(a)(3) and requires a fair and accurate description of exceptions, limitations and reductions in a manner which does not minimize, render obscure or otherwise make them appear unimportant.
Advertisements must state exceptions, limitations and reductions in the negative and must not understate any exception, limitation or reduction or qualify any exception, limitation or reduction to emphasize coverage described elsewhere (i.e., "Does not pay for ____________________, however, Medicare pays this" is not acceptable, nor is "Does not pay for the first four days in hospital for sickness, but pays for accident from first day"). (Underscoring indicates the manner in which statements are sometimes emphasized.)
This Subsection prohibits the use of any term, such as "just," "only," "merely," "necessary" or "minimum" to describe any exclusion, limitation, reduction or exception.
GUIDELINE 2536.2(b)(4)
This Subsection is designed to ensure that insurers will better explain the effect of benefit reductions, sometimes known as "offsets," on the maximum benefit amounts set forth in their invitations to contract. It is not sufficient under subsection (4) to state the amount of the maximum benefit available under a policy without also showing, in a dollar amount example, how the maximum benefit amount might be reduced by at least two common reductions which are provided for in the policy. An example of how two common reductions would reduce the amount of the maximum benefit that an insured would receive is set forth below. The example assumes that the policy provides for a long term disability benefit payment of 60% of pre-disability earnings. This percentage may vary, depending on the terms of the policy.
Insured's monthly predisability earnings | $3,000 | |
Long term disability benefit percentage | x 60% | |
Unreduced maximum benefit | $1,800 | |
Less Social Security disability benefit per month | - 900 | |
Less state disability income benefit per month | - 300 | |
Amount of long term disability benefit per month | $ 600 |
(c) Pre-Existing Conditions.
GUIDELINE 2536.2(c)(1)
This Subsection imposes the same disclosure standards with respect to pre-existing conditions provisions as noted in Guideline 2536.2(b)(1). The comments under that Guideline are equally applicable to this Subsection of the rules since the pre-existing conditions provision is an exception under the rules.
This rule implements the objective of Section 2536.2(a)(3) by requiring in negative terms a description of the effect of a pre-existing condition exclusion because such an exclusion is a restriction on coverage. The subdivision also prohibits the use of the phrase "pre-existing condition" without an appropriate definition or description of the term and prohibits stating a reduction in the statutory time limit (such as a reduction from three years to two years or to one year) as an affirmative benefit. The words "appropriate definition or description" mean that the term "pre-existing condition" must be defined as it is used by the company's claims department.
GUIDELINE 2535.2(c)(2)
The phrase "no health questions" or words of similar import shall not be used if the policy excludes pre-existing conditions.
Use of a phrase such as "guaranteed issue" or "automatic issue," if the policy excludes pre-existing conditions for a certain period, must be accompanied by a statement disclosing the fact in a manner which does not minimize, render obscure, or otherwise make it appear unimportant and is otherwise consistent with Section 2536.
"Do you understand that this policy will not pay benefits during the first ___ year(s) after the issue date for a disease or physical condition which you now have or have had in the past?" [ ] YES;
Or substantially the following statement:
"I understand that the policy applied for will not pay benefits for any loss incurred during the first ___ year(s) after the issue date on account of disease or physical condition which I now have or have had in the past."
GUIDELINE 2536.2(c)(3)
This subsection is self-explanatory.
1. Amendment
filed 11-19-74; effective thirtieth day thereafter (Register 74, No.
48).
2. Amendment of Guideline 2536.2(b)(3), new Guideline 2536.2(b)(4)
and new NOTE filed 6-24-2008; operative 8-23-2008 (Register 2008, No.
26).
Note: Authority cited: Section 790.10, Insurance Code; CalFarm Ins. Co. v. Deukmejian, (1989) 48 Cal.3d 805; and 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216. Reference: Sections 790.02 and 790.03, Insurance Code.