Code of Maine Rules
02 - DEPARTMENT OF PROFESSIONAL AND FINANCIAL REGULATION
031 - BUREAU OF INSURANCE
Chapter 931 - VIATICAL AND LIFE SETTLEMENTS
Section 031-931-9 - Advertising

Universal Citation: 02 ME Code Rules ยง 031-931-9

Current through 2024-38, September 18, 2024

This section shall apply to any advertising of viatical or life settlement contracts, products or services intended for dissemination in this State, including internet advertising viewed by persons located in this State. In addition to the specific requirements in 24-A M.R.S.A. §6817 and Section 10 of this rule, all such advertising must comply with the specific standards of this section.

A. No advertisement shall use the terms "investment," "investment plan," "founder's plan," "deposit," "expansion plan," "profit," "profits," "profit-sharing," "interest plan," "savings plan," "private pension plan," "retirement plan" or other similar terms in connection with a settlement contract in a context or under such circumstances or conditions as to have the capacity or tendency to mislead or deceive a viator, purchaser or prospective purchaser.

B. Certain advertisements are deemed false and misleading on their face and therefore prohibited. False and misleading settlement contract advertisements include, but are not limited to, the following representations:

(1) "Guaranteed," "fully secured," "100% secured," "fully insured," "secure," "safe," "backed by rated insurance company(ies)," "backed by federal law," "backed by state law," or "state guaranty funds," or similar representations;

(2) "No risk," "minimal risk," "low risk," "no speculation," "no fluctuation," or similar representations;

(3) "Qualified or approved for individual retirement accounts (IRAs), Roth IRAs, 401(k) plans, simplified employee pensions SEP, 403(b), Keogh plans, TSAs, other retirement account rollovers," "tax deferred," or similar representations;

(4) Use of the word "guaranteed" to describe the fixed return, annual return, principal, earnings, profits, investment, or similar representations;

(5) "No sales charges or fees" or similar representations;

(6) "High yield," "superior return," "excellent return," "high return," "quick profit," or similar representations;

(7) Purported favorable representations or testimonials about the benefits of settlement contracts as an investment, taken out of context from newspapers, trade papers, journals, radio and television programs, and all other forms of print and electronic media.

C. The information required to be disclosed under this section shall not be presented in any form or manner so as to be misleading or deceptive. Without limitation, such information shall not be minimized, rendered obscure, or presented in an ambiguous fashion or intermingled with the text of the advertisement so as to be misleading or deceptive, and shall meet the following specific standards.

(1) An advertisement shall not omit material information or use words, phrases, statements, references or illustrations if such omission or use has the capacity, tendency or effect of misleading or deceiving viators, purchasers or prospective purchasers as to the nature or extent of any benefit, loss covered, premium payable, or state or federal tax consequence. The fact that the contract offered is made available to a prospective viator for inspection prior to consummation of the sale, or an offer is made to refund the payment if the viator is not satisfied or that the contract includes a "free look" period that satisfies or exceeds legal requirements, does not remedy misleading or deceptive statements.

(2) An advertisement shall not use the name or title of a life insurance company or a life insurance policy unless accompanied by other language clearly indicating that the advertisement has not been approved by the insurer.

(3) An advertisement shall not represent that premium payments will not be required to be paid on the life insurance policy which is the subject of a settlement contract in order to maintain that policy, unless that is the fact.

(4) An advertisement shall not state or imply that interest charged on an accelerated death benefit or a policy loan is unfair, inequitable or in any manner an incorrect or improper practice.

(5) The words "free," "no cost," "without cost," "no additional cost," "at no extra cost," or words of similar import shall not be used with respect to any benefit or service unless true. An advertisement may specify the charge for a benefit or a service, state that a charge is included in the payment, or use other appropriate language.

(6) Testimonials, appraisals or analysis used in advertisements must be genuine; represent the current opinion of the author; be applicable to the contract, product or service advertised, if any; and be accurately reproduced with sufficient completeness to avoid misleading or deceiving prospective viators as to the nature or scope of the testimonials, appraisal, analysis or endorsement. In using testimonials, appraisals or analysis, the settlement provider or producer makes as its own all the statements contained therein, and such statements are subject to all the provisions of this section.
(a) If the individual making a testimonial, appraisal, analysis or an endorsement has a financial interest in the settlement provider or related entity as a stockholder, director, officer, employee or otherwise, or receives any benefit directly or indirectly other than required union scale wages, the advertisement must prominently disclose such fact.

(b) An advertisement shall not state or imply that a settlement contract, benefit or service has been approved or endorsed by a group of individuals, society, association or other organizations unless such is true and unless any relationship between an organization and the settlement provider is disclosed. If the entity making the endorsement or testimonial is owned, controlled or managed by the settlement provider, or receives any payment or other consideration from the settlement provider for making an endorsement or testimonial, the advertisement must disclose that fact.

(c) When an endorsement refers to benefits received under a settlement contract, the settlement provider shall retain all pertinent information for inspection until the later of the completion by the Superintendent of the next market conduct examination of the settlement provider or six years from the date of the advertisement.

D. An advertisement shall not contain statistical information unless it accurately reflects recent and relevant facts. The advertisement shall identify the sources of all statistics used.

E. An advertisement shall not make unfair or incomplete comparisons of insurance policies, benefits, dividends or rates. An advertisement shall not disparage insurers, insurance producers, settlement providers, policies, services or methods of marketing.

F. The name of the settlement provider shall be clearly identified in all advertise-ments about the provider or its contracts, products or services, and if any specific settlement contract is advertised, such contract shall be identified either by form number or some other appropriate description. If an application is part of the advertisement, the name of the settlement provider shall be shown on the application.

G. An advertisement shall not use a trade name, group designation, name of the parent company of the settlement provider, name of a particular division of the settlement provider, service mark, slogan, symbol or other device or reference without disclosing the name of the settlement provider, if the advertisement would have the capacity or tendency to mislead or deceive as to the true identity of the settlement provider, or create the impression that a company other than the settlement provider would have any responsibility for the financial obligation under a contract.

H. An advertisement shall not use any combination of words, symbols or physical materials which by their content, phraseology, shape, color or other characteristics are so similar to a combination of words, symbols or physical materials used by a government program or agency or otherwise appear to be of such a nature that they tend to mislead or deceive prospective viators into believing that the solicitation is in some manner connected with any government program or agency. An advertisement shall not imply that any government entity has recommended or endorsed the settlement provider, its financial condition or status, the payment of its claims, or the merits, desirability or advisability of its contract forms.

I. An advertisement may state that the settlement provider is licensed in the state where the advertisement appears, provided it does not exaggerate that fact or suggest or imply that competing settlement providers may not be so licensed. The advertisement may ask the audience to consult the provider's website or contact or contact the Bureau of Insurance to find out if a license is required and, if so, whether the settlement provider is licensed.

J. An advertisement shall not create the impression that the settlement provider, its financial condition or status, the payment of its claims or the merits, desirability, or advisability of its contract forms are recommended or endorsed by any government entity.

K. The name of the actual settlement provider shall be stated in all of its advertisements. An advertisement shall not use a trade name, any group designation, name of any affiliate or controlling entity of the licensee, service mark, slogan, symbol or other device in a manner that would have the capacity or tendency to mislead or deceive as to the true identity of the actual settlement provider or create the false impression that an affiliate or controlling entity would have any responsibility for the financial obligation of the settlement provider.

L. An advertisement shall not directly or indirectly create the impression that any division or agency of the State or of the U.S. government endorses, approves or favors:

(1) Any viatical settlement licensee or its business practices or methods of operation;

(2) The merits, desirability or advisability of any settlement contract;

(3) Any settlement contract; or

(4) Any life insurance policy or life insurance company.

M. If an advertisement indicates the time in which the viatication will occur, the advertisement must disclose the average time frame from completed application to the date of offer and from acceptance of the offer to receipt of the funds by the viator.

N. If an advertisement indicates the dollar amounts available to viators, the advertisement shall disclose the average purchase price as a percent of face value obtained by viators contracting with the settlement provider during the past six (6) months.

O. Each settlement provider shall maintain at its home or principal office a complete file containing a specimen copy of every printed, published or prepared advertisement of its contracts and specimen copies of every printed, published or prepared advertisements, hereafter disseminated in this State, with a notation indicating the manner and extent of distribution and the form number of any contract advertised. The monthly report must be made available to the Superintendent for examination at the producer's office location in the State at any time or by delivery to the Bureau upon 5 days' notice by the Superintendent. All advertisements shall be maintained in the file for a period of either six (6) years after discontinuance of its use or publication or until the filing of the next regular report on the examination of the organization, whichever is the longer period of time.

(1) If the Superintendent determines that an advertisement has the capacity or tendency to mislead or deceive the public, the Superintendent may require a settlement provider to submit all or any part of its advertising material for review or approval prior to use.

(2) Each settlement provider shall file with the Superintendent with its annual statement a certificate of compliance executed by an authorized officer of the settlement provider stating that to the best of his or her knowledge, information and belief, the advertisements which were disseminated or seen or heard in this State by or on behalf of the settlement provider during the preceding statement year complied or were made to comply in all respects with the provisions of this section.

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