Current through Register Vol. 48, No. 9, September 27, 2024
A. The use of
senior-specific certification or designation by any person in connection with
the offer, sale, or purchase of securities, or the provision of advice as to
the value or the advisability of investing in, purchasing, or selling
securities, either directly or indirectly or through publications or writings,
or by issuing or promulgating analyses or reports relating to securities, that
indicates or implies that the user has special certification or training in
advising or servicing senior citizens or retirees, in such a way as to mislead
any person, shall be a dishonest and unethical practice. The prohibited use of
such certifications or professional designations includes, but is not limited
to, the following:
(1) use of a certification
or professional designation by a person who has not actually earned or is
otherwise ineligible to use such certification or designation;
(2) use of a nonexistent or self-conferred
certification or professional designation;
(3) use of a certification or professional
designation that indicates or implies a level of occupational qualification
obtained through education, training, or experience that the person using the
certification or professional designation does not have; or
(4) use of a certification or professional
designation that was obtained from a designating or certifying organization
that:
(a) is primarily engaged in the business
of instruction in sales and/or marketing;
(b) does not have reasonable standards or
procedures for assuring the competency of its designees or
certificants;
(c) does not have
reasonable standards or procedures for monitoring and disciplining its
designees or certificants for improper or unethical conduct; or
(d) does not have reasonable continuing
education requirements for its designees or certificants in order to maintain
the designation or certificate.
B. There is a rebuttable presumption that a
designation or certifying organization is not disqualified solely for purposes
of subsection A(4) above when the organization has been accredited by:
(1) The American National Standards
Institute;
(2) The National
Commission for Certifying Agencies;
(3) an organization that is on the United
States Department of Education's list entitled "Accrediting Agencies Recognized
for Title IV Purposes" and the designation or credential issued therefrom does
not primarily apply to sales and/or marketing; or
(4) any other nationally recognized
accreditation organization designated by the Securities Commissioner by rule or
order.
C. In determining
whether a combination of words (or an acronym standing for a combination of
words) constitutes a certification or professional designation indicating or
implying that a person has special certification or training in advising or
servicing senior citizens or retirees, factors to be considered shall include:
(1) Use of one or more words such as
"senior," "retirement," "elder," or like words, combined with one or more words
such as "certified," "registered," "chartered," "adviser," "specialist,"
"consultant," "planner," or like words, in the name of the certification or
professional designation; and
(2)
The manner in which those words are combined.
D.
(1) For
purposes of this rule, a certification or professional designation does not
include a job title within an organization that is licensed or registered by a
state or federal financial services regulatory agency, when that job title:
(a) indicates seniority or standing within
the organization; or
(b) specifies
an individual's area of specialization within the organization, unless the
facts and circumstances associated with the provision or use of a job title
indicate that it improperly suggests or implies certification or training
beyond that which the titleholder possesses, or otherwise misleads
investors.
(2) For
purposes of this subsection, "financial services regulatory agency" includes,
but is not limited to, an agency that regulates broker-dealers, investment
advisers, or investment companies as defined under the Investment Company Act
of 1940.
E. Nothing in
this rule shall limit the Securities Commissioner's authority to enforce
existing provisions of law.
