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0 of 51 Marketing and Advertising
Carl Pry
May 24, 2016
A TTS Production
Marketing & Advertising Compliance,
including UDAAP Expectations
Carl Pry
May 24, 2016
1 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Advertising Basics
What is an “advertisement”?
Reg. DD: “a commercial message, in any medium and in virtually any form, that promotes
directly or indirectly the availability of a product
FDIC: “a commercial message, in any medium, that is designed to attract public attention
or patronage to a product or business”
All media is covered: radio, TV, print ads, Internet, etc.
The Internet is considered a print medium under the rules
Billboards and rate boards in branch lobbies are also considered ads
When the institution controls the content and/or pays for its publication, it must follow the
rules
• Rate sheets, or other publications over which the institution has no control are not advertisements
(i.e. rate tables in the Sunday paper)
UDAP/UDAAP: any communication with customers that communicates information
about products or services, in whatever form is subject to examination
2 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Latest Developments
FTC Enforcement Policy Statement Addressing “Native” Advertising
and Deceptively Formatted Advertisements (12/22/15)
https://www.ftc.gov/news-events/press-releases/2015/12/ftc-issues-enforcement-
policy-statement-addressing-native
Explains how consumer protection principles apply to different advertising
formats, including “native” ads that look like surrounding non-advertising content
• Promotional messages should be identifiable as advertisements – contains examples
• Has proximity and placement, prominence, and clarity guidance
• “Both what the ad says and the format it uses to convey that information will be
relevant. Any clarifying information necessary to prevent deception must be disclosed
clearly and prominently to overcome any misleading impression.”
General principles FTC considers in determining whether any particular ad
format is deceptive and violates the FTC Act
3 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Latest Developments
CFPB guidance and bulletin about marketing services agreements
http://www.consumerfinance.gov/about-us/newsroom/cfpb-provides-guidance-
about-marketing-services-agreements/ (10/8/15)
RESPA Section 8 prohibition against kickbacks and unearned fees
• Applies in consumer mortgage loan environment
“[W]hile marketing services agreements are usually framed as payments for
advertising or promotional services, in some cases the payments are actually
disguised compensation for referrals. Any agreement that entails exchanging a
thing of value for referrals of settlement service business likely violates federal
law, regardless of whether a marketing services agreement is part of the
transaction.”
Examples provided:
• “CFPB found a title insurance company that entered into marketing services
agreements where the fees paid by the company were based in part on the number of
referrals it received, as well as the revenue generated by those referrals”
4 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Latest Developments
FTC annual financial acts
enforcement report to CFPB
(6/9/15)
https://www.ftc.gov/news-events/press-
releases/2015/06/ftc-staff-provides-annual-
financial-acts-enforcement-report
Details FTC’s enforcement, research,
rulemaking, and policy development
activities with Regs. E, M, and Z
Includes enforcement actions related to
non-mortgage credit
• Auto finance and payday lending,
mortgage loan advertising, and forensic
audit scams
Consumer and business outreach with
Reg. Z requirements
5 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Unfair or Deceptive Acts or
Practices (UDAP)
You may only advertise terms that are actually
available
No ad may be unfair or deceptive – §5 of the FTC Act
• Applies to all ad types – consumer and commercial
Be careful of your audience – who is likely to respond to
the ad?
• Vulnerable populations
6 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Unfair
What makes an advertisement “unfair”?
1. It causes or is likely to cause substantial injury
• “Injury” means monetary harm, but “substantial” doesn’t mean that much
– Small harm (misstatement of the rate or fees) to a large amount of people
– Look to how products are advertised – are they accurate?
2. That cannot be reasonably avoided, and
• Unavoidable when it interferes with a consumer’s ability to make a informed
decision
– Omissions of fees or rate practices
3. The injury is not outweighed by any benefit to the consumer
• “Outweighed” – net effect is to harm consumers; found in virtually all these
situations
7 of 51 Marketing and Advertising
Carl Pry
May 24, 2016
What makes a practice “deceptive”?
1. The practice misleads or is likely to mislead;
• “Likely to mislead” looks at what is said as well as what is not said
– Is the rate artificially low?
– Is the initial rate more prominent than it should be?
– Are adjustments left unsaid in the ad?
2. A reasonable consumer would be misled, and
• “Reasonable consumer” is the target audience for the ad
• Who is likely to apply?
3. The practice is material
• “Material” practice again means likely to affect a consumer’s choice
– This again is virtually everything
Deceptive
8 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 UDAP + Abusive = UDAAP
Dodd-Frank added “abusive” to come up with UDAAP
Who does this standard apply to?
What makes a practice ”abusive”?
“Materially interferes with the ability of a consumer to understand
a term or condition of a consumer financial product or service”
“Takes unreasonable advantage of”:
• “A lack of understanding on the part of the consumer of the material risks,
costs, or conditions of the product or service”
• “The inability of the consumer to protect the interests of the consumer in
selecting or using a consumer financial product or service”
• “Reasonable reliance by the consumer on a covered person to act in the
interests of the consumer”
9 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 ‘Unfairness’ in Other Regulations
Unfairness is already built into other rules
Especially related to advertising
• Reg. Z requires only “actually available terms” be offered:
“only those terms that actually are or will be arranged or
offered by the creditor” be stated
• Reg. DD prohibits “misleading or inaccurate advertisements,”
further stating that an advertisement “shall not misrepresent a
depository institution’s contract”
Reg. B, FHA, and fair lending
• If a practice unfairly targets or has a disparate impact
on members of a protected class, it may also be
considered unfair
10 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 FTC UDAP Mortgage Rules
Bans deceptive mortgage ads
Bans material misrepresentations for all mortgages
Would allow FTC and the states to seek civil penalties against
violators
16 CFR 321: Lists examples of misrepresentations about fees,
costs, obligations, and others that would be violations
Does NOT cover banks, thrifts, federal credit unions, and
other entities that are outside FTC’s jurisdiction
But can serve as a basis for UDAP/UDAAP
11 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 CFPB Enforcement Actions
Focus on “Practices” (the ‘P’ in UDAAP)
Sales and marketing practices
• “engaged in deceptive tactics to sell…products”
• “misled about the benefits”
• “deceived about the nature of the products”
• “misinformed about cost of the products”
Cancellation practices, marketers’ scripts, and sales
practices were the focus of the order, not the add-on
products themselves
12 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 CFPB Enforcement Actions
Consent Orders to resolve allegations that vendors deceptively marketed ancillary
products
Such as payment protection and credit monitoring
Will refund approximately $140 million to roughly 2 million customers, and $25
million penalty
Recipients prohibited from selling and marketing certain ancillary products until
obtaining approval to do so
Also must take specific actions to enhance compliance with consumer financial laws
Consent order on how “free” checking accounts are marketed
“Free” isn’t really free
Consent orders concentrated on sales practices, not products or services
How scripting is maintained, responses, customer understanding
UDAAP focus is clear, focus on deception
13 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 CFPB Expectations
CFPB Bulletin 2012-06
Expects supervised institutions and their vendors to offer ancillary products in
compliance with federal consumer financial laws
Reviews applicable federal law and outlines compliance program components
that CFPB expects supervised institutions to maintain
Cites “supervisory experience [that] indicates that some credit card
issuers have employed deceptive promotional practices when
marketing” these products
Failing to adequately disclose terms and conditions
Enrolling customers without their consent
Billing for services not performed
14 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Best Practice Recommendations
No customer communication should be
released without a fair lending, UDAAP,
and technical compliance review
Ad copy should be reviewed every time;
even if content does not change
Complaints may also prompt mid-stream
advertising reviews
15 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Deposit Advertising
Look to Truth in Savings/Reg. DD for consumer
deposit account advertising
For commercial accounts, follow UDAP principles
(TISA doesn’t apply)
The ad must fairly represent the terms of the
deposit contract offered
“Profit” cannot be used to characterize interest or
earnings on an account
16 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Deposit Advertising
Be careful with use of the words “free” or “no cost”
If any maintenance or activity fee could be assessed
(under any circumstances), the account is not free
• Minimum balance, excessive transaction, service fees, etc.
• Check re-order fees, over-limit charges, NSF charges, and
dormancy fees are not activity fees and can be assessed on a
“free” account
• ATM, electronic services fees are not activity fees if account
could be obtained without services
17 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Deposit Advertising
Be careful with use of the words “free” or “no cost”
A service may be advertised as free even if the account itself is not
free
• “Free ATM transactions,” for instance
Limited time “free” accounts are OK, too, as long as timeframe is
included in the ad
Advertising an account as “free” as long as conditions (not relating
to the deposit account, e.g. age) are met is OK
• Provided the conditions are disclosed in the ad
18 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Annual Percentage Yield
When an interest rate is advertised, the “annual percentage
yield” must also appear, using that term
The APY may be stated without the interest rate, however
The abbreviation “APY” may be used elsewhere in the ad as long
as it is spelled out at least once in the ad (may be in the small
print)
The numerical statement of the rate is the trigger
• “1% over normal rates” or “bonus rates available” do not trigger any
additional disclosure
• If stating the APY numerically, state it to 2 decimal places
19 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Annual Percentage Yield
When an interest rate is advertised, the “annual percentage
yield” must also appear, using that term
If stating both the interest rate and the APY, the interest rate
cannot be more conspicuous than the APY
• Why would it be? APY will (normally) be a higher number
• Internet: disclosing the interest rate with a link to the APY is not acceptable
– they must be visible on the same page
When advertising a tiered-rate (or stepped-rate) account, you
cannot just advertise the highest APY –include all
Tolerance: APYs disclosed with an accuracy of within .05 (plus or
minus)
• Intentional over-disclosure is still a violation, however
20 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Bonus
A “bonus” is something (cash, merchandise, etc.) given to a
customer in connection with opening or maintaining an
account
Having a value of over $10 (yearly calculation)
• Discounts coupons at stores or restaurants are not bonuses
Waiver of a fee or account expense is not a bonus
• Institution products don’t count
Bonus amount is not included in the APY calculation
Use of the word “bonus” when not meeting the definition in Reg.
DD is OK
• “Bonus rates on CDs” would be OK – does not trigger anything
21 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 1099 Requirements
IRS considers most anything given to an accountholder
“interest” and therefore reportable on a 1099
Cash is always reportable (if over applicable 1099 threshold)
“de minimis premiums” exception: “non-cash inducement…to a
depositor to open or add to an account, that does not have a
value in excess of $10 for a deposit of less than $5,000 or $20
for a deposit of $5,000 or more”
Interest-bearing account: 1099-INT
$10 reporting threshold per depositor per year
Noninterest-bearing account or loan: 1099-MISC
$600 reporting threshold
22 of 51 Marketing and Advertising
Carl Pry
May 24, 2016
APY and bonus are triggering terms, meaning if either
appears in an ad, additional disclosures must also be made
in the ad
For broadcast media ads (meaning radio, TV, outdoor billboards,
telephone), disclose:
• The minimum balance (if any) to get that APY
– If it is a tiered rate account, the minimum for each tier must be
disclosed
• The term of the account for a time product (CD)
• If a bonus is offered, the APY and all applicable disclosures about the
APY must appear
– You cannot advertise a bonus by itself (without the APY)
Trigger Terms
23 of 51 Marketing and Advertising
Carl Pry
May 24, 2016
APY and bonus are triggering terms
For written ads (meaning newspaper, magazine, internet, brochures, etc.),
disclose:
• All requirements for broadcast media, plus:
• If the rate is variable, a statement that the rate may change after the account is
opened
• The timing of the APY offered (“offered until” or “offered as of”)
• The minimum opening deposit (if greater than the minimum to earn the stated APY)
• A statement that “fees could reduce the earnings on the account”(if this is the case)
• For a time account, statement that a penalty may or will be imposed for early
withdrawal
• If a bonus is offered, what is required to earn the bonus and when it will be provided
For Internet ads, triggered terms may appear in a link, provided that link is only
one click away
Trigger Terms
24 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Signs and Systems
Indoor signs are exempt from many of the deposit advertising rules
What is an indoor sign? A sign inside the premises of the depository institution
(regardless of whether or not it can be viewed from the outside)
• Rate boards, computer screens, etc.
• Signs posted outside the institution are not “on premises”
Required disclosures for indoor signs:
• Rates must be advertised as “APY”
– Interest rates may also be disclosed, but not alone
• If an APY is disclosed, a statement that the person should ask an employee for
more information about fees and terms
• If advertising a tiered-rate account, the lower dollar amount to get the listed tier
must be disclosed
• If a time account, the term
25 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Signs and Systems
Loan signs
Reg. Z has no such exceptions; signs must meet all Reg
Z requirements
Discretionary overdraft limits on automated
systems
If the dollar amount of such a limit is included in the
disclosed balance, the disclosure is considered to be an
“advertisement” promoting the payment of overdrafts
Additional disclosures (conditions, etc.) required
26 of 51 Marketing and Advertising
Carl Pry
May 24, 2016
“Member FDIC” must appear on certain advertisements
This is the FDIC’s “official advertising statement”
• Can use symbol or statement (variations)
This should appear in each ad for any insured deposit product
• Also if the ad mentions the institution’s name, but is not specific as to any product
– There are various exceptions to these rules (FDIC regulation: 12 CFR 328)
• It is permissible, though not necessary, for loan ads
It should NOT appear in ads for non-deposit investment products, like mutual
funds, annuities, etc.
NCUA rules regarding its sign and statement
Include it in all radio and TV ads, annual report, and size requirement for print
media
FDIC Signs and Statement
27 of 51 Marketing and Advertising
Carl Pry
May 24, 2016
When advertising non-deposit investment products, like mutual funds,
securities, and so forth, do NOT include the FDIC official advertising
statement or logo
Sales representatives should inform consumers (orally or in writing) that: "This product is not insured by the Federal Deposit Insurance Corporation"
"This product is not a deposit or other obligation of, or guaranteed by, the bank"
"This product is subject to investment risks, including possible loss of the principle
amount invested"
Provide 3 disclosures in “visual media”:
May also include: “Not a Deposit”; “Not Insured by Any Government Agency”
When advertising both insured and non-insured products, make sure proper
disclosures are made, and there is separation in the ad so there is no doubt
non-insured products are not insured
Non-Insured Investment Products
NOT FDIC- INSURED
May lose value No bank guarantee
28 of 51 Marketing and Advertising
Carl Pry
May 24, 2016
Banks are prohibited from holding or participating in “lotteries”
A “lottery” is where 3 or more people give money or credit for the possibility
that one or more of them (but not all of them) will get more than they contributed
The winner may be determined by
Any random selection, game, race, contest, etc.
The key is “giving money or credit” to get in
If there is no purchase required to qualify the contest, drawing, etc., then it is not
a “lottery” under the statute and you can do it
Financial institutions cannot
Deal in lottery tickets for others
Advertise or publicize another’s lottery or its winners
Allow use of its premises by others for a lottery purpose
Lotteries
29 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Equal Housing Lender
Equal Housing Lender statement/logo (the “house”)
Visual ads: Must appear in all dealing with residential lending
• No size requirement anymore – just must be legible
Internet ads: logo should appear on each page dealing with
residential lending products
Verbal ads: “equal housing lender” statement
30 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Fair Lending Considerations
Ads must not overtly discriminate (who would be
discouraged from applying by looking at your ad?)
Encourage everyone; discourage no one
For instance, watch the characteristics of the models in ads
– make sure they represent the makeup of your marketing
area
Ad programs are examined in their totality – does your
program tend to discriminate?
Be careful with jointly-sponsored ads
You could be seen as a co-conspirator in discriminatory
conduct
31 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Fair Lending Considerations
Geographic lending advertising
Is it OK to send different ads based on state, city, county, zip code,
etc.?
High-minority census tracts (HMCTs)
How about advertising for different ages?
Only age 62 or over may be targeted (older Americans)
Vulnerable classes (UDAAP)
Proxies for prohibited information
Are you really screening on a prohibited basis?
32 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 What You CAN Do
Vary advertisements if there is a “legitimate business
justification”
What is this?
Vary on non-prohibited bases?
Special promotions are OK, as long as…
Offer rates or deals not everyone would get, as long as
enough would qualify
And conditions are clearly stated
Utilize segment marketing, as long as…
33 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Tax Deductibility
Don’t hold yourself out to be a tax expert or
advisor
Do you advertise that interest on home loans is tax-
deductible?
Especially on home equity loans where LTV could
exceed 100%, retirement account ads
“Consult your tax advisor” or similar language
34 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Reg. Z: Consumer Loan
Advertising – Closed End Credit
Reg. Z controls consumer loan ads – commercial: just comply with UDAP
principles
If you state an interest rate, you must also state the APR (reverse not true,
though)
When advertising a rate, “APR” is sufficient - don’t need to spell it out
What you must say in an ad depends on what you already do say in the ad:
Triggering Terms
If you say any of these:
• Downpayment information
(only in a credit sale*)
• Payment amount
• Number of payments or
repayment period
• Any finance charge amount
Triggered Terms
Then you must say all of these:
• Downpayment information
(only in a credit sale*)
• Terms of repayment (typical)
• APR (and if it is variable, that
fact)
* A credit sale is one in which the creditor is also the seller (selling repossessed property, for instance)
35 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Reg. Z: Consumer Loan
Advertising – Closed End Credit
Numerical disclosures of the terms are what trigger
Or if you can figure out the number from the ad’s information
Notice what is not a triggering term: APR
But if you advertise an APR that may rise after consummation,
you must state that it is variable
You may also state the interest rate, but not more prominently than
the APR
For online ads, a link to triggered terms is acceptable (only
if they are one click away)
Many additional requirements for mortgage loans
36 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Reg. Z: Consumer Loan
Advertising – Open End Credit
Again, what you must say in an ad depends on what you already do say in the ad:
Triggering Terms
If you say any of these:
• Finance charge or APR
• Any other charges
Triggered Terms
Then you must say all of these:
• Transaction or other activity charges
• APR (and the fact that it may vary, if it can)
• Any membership of other participation fee
Additional special rule for HELOCs
Triggering terms can be stated affirmatively or negatively (the absence of the term)
• “No Closing Costs Home Equity Lines During July!” - Triggers
Stating the absence of a triggering term nonetheless means you must include all triggered terms in
your ad
For all consumer loans covered by Reg. Z, the form of media doesn’t matter
Rate boards, online ads, etc. all must follow the same rules
37 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Privacy Rules
Normally, consumer financial information must be kept
private and not shared with outside parties for any purpose,
including marketing
Section 13 of Reg. P provides for an exception covering
joint marketing of financial products with others
This means a customer cannot opt out of this type of sharing
However, this sharing must be disclosed to customers in your
Privacy Notice disclosure
The institution must enter into a contract with the third party,
specifying that the third party not disclose the information to
others in an otherwise violation of Reg. P
38 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Privacy: Prohibition Against
Sharing Account Numbers
Reg P prohibits disclosure of account numbers or similar access
numbers/codes to nonaffiliated third party for marketing purposes
It is allowable to credit bureaus, however
There is a little different definition of “account number” here
It means a credit card or deposit account number
But it also covers any other “transaction account” number
• This is different than the standard definition you’re used to (such as a checking
account under Reg. CC, etc.)
• It means an account other than a deposit account or credit account from which a
third party could initiate charges
• Could someone steal money out of the account if they had the number?
– If so, then sharing it is prohibited
39 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 FCRA: Sharing Information with
Affiliates
If you share consumer report information with third parties you must
provide the consumer with the ability to prevent the sharing (opt out)
Sharing consumer reports with an affiliate so the affiliate can make a
marketing solicitation
Includes transaction information
• If consumer has a business relationship with the affiliate, it’s excepted
The affiliate cannot do it unless the institution that has the information (you) discloses
to the consumer that their information may be shared with affiliates for such purposes,
and
The consumer is provided with an opportunity and a simple method to prohibit the
sharing (opt out)
• There may be different ways to opt out made available
• The opt out must be “clear, conspicuous, and concise” and “simple”
The opt out is effective for 5 years
At the end of 5 years, another opt out opportunity must be provided before solicitations
from sharing can occur
40 of 51 Marketing and Advertising
Carl Pry
May 24, 2016
This is the practice of obtaining a list of qualified prospects from a credit
bureau, or otherwise obtaining credit information before making the
solicitation
Criteria is submitted to the bureau, must be retained for 5 years
A “firm offer of credit” must be made to every name on the list
Verifications can be made to ensure that the prospect still meets the criteria
The offers can vary among people on the list – they don’t have to be equal
Preapproved offers must include additional disclosures:
Information from the consumer’s credit file was used in the solicitation
The consumer meets the criteria for the product offered
The consumer has the right to prohibit future solicitations
Procedures to exclude the consumer’s name from such lists
FCRA: Prescreening
41 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Prescreening Disclosures
“Layered” approach to required notice (2 separate disclosures)
Short form notice is used on the first page of the “principal promotional
document” (near the main promotional message for electronic solicitations)
• This is the cover letter, or document or screen meant to be seen first
• Just the opt-out right, toll-free number, and a reference to the long form notice
• Must be distinct text (different style from the main one) and larger than the
principal text on the page, and no smaller than 12-point type (relative prominence
standard for electronic solicitations)
Long form notice contains all the details, and is separated from other
information on the solicitation
• No smaller than principal text on page, no smaller than 8-point
Opt-out is good for 5 years
42 of 51 Marketing and Advertising
Carl Pry
May 24, 2016
Short form notice – on principal page of solicitation
Sample Language for Prescreenings
Long form
notice contained within
the body of the
solicitation itself
Required notice
43 of 51 Marketing and Advertising
Carl Pry
May 24, 2016
FTC Free Credit Reports Rule requires prominent
disclosures in advertisements for “free credit reports”
Ads offering free credit reports must include a disclosure, across
the top of each page that mentions free credit reports, which states:
THIS NOTICE IS REQUIRED BY LAW. Read more at FTC.GOV.
You have the right to a free credit report from AnnualCreditReport.com
or 877-322-8228, the ONLY authorized source under federal law.
Website disclosure must include a clickable button to
“Take me to the authorized source” and clickable links to
AnnualCreditReport.com and FTC.GOV
Offering “Free Credit Reports”
44 of 51 Marketing and Advertising
Carl Pry
May 24, 2016
FTC’s Guides Concerning the Use and Endorsements and
Testimonials in Advertising covers:
“Any advertising message…that consumers are likely to believe
reflects the opinions, beliefs, findings, or experiences of a party
other than the sponsoring advertiser, even if the views expressed
by that party are identical to those of the sponsoring advertiser”
Standards to be met:
“Material connections” must be disclosed
Testimonials must be truthful
Expert endorsers must actually be qualified
False or misleading claims = UDAP
Testimonials
45 of 51 Marketing and Advertising
Carl Pry
May 24, 2016
There are 3 aspects to this: FTC Do-Not-Call rules, company-specific
rules, and state laws
FTC Do-Not-Call rules (from the Telephone Consumer Protection
Act, or TCPA)
After a personal phone number (including cell phone numbers) is registered
with FTC, you cannot call that number for solicitations unless it is covered by
an exception
• Companies with a present relationship are exempt for 18 months since last
transaction with it (3 months if an inquiry or application has been made)
• If the consumer has expressly consented to calls
Numbers remain on the list indefinitely
You must check the list every 3 months for additions and changes
Do-Not-Call Rules
46 of 51 Marketing and Advertising
Carl Pry
May 24, 2016
Company-specific rules
If a consumer specifically asks the company not to call anymore,
no solicitation calls may then be made
• Keep your own Do-Not-Call list in addition to checking the FTC’s list
State Do-Not-Call rules
Most are similar to FTC’s, but be sure to check
FTC has called for comments on possible changes to the
caller ID provisions of the TSR
Strengthen the rule?
Do-Not-Call Rules
47 of 51 Marketing and Advertising
Carl Pry
May 24, 2016
Controlling the Assault of Non-Solicited Pornography And
Marketing Act of 2003 (CAN-SPAM)
This applies to you if you send out electronic messages to either customers or
prospective customers to sell your products or services
• These are “commercial electronic mail messages,” whose primary purpose is to sell
product or service
• “Transactional or relationship messages” are exempt – these facilitate, complete, or
confirm a transaction the customer has requested, or contains needed information
regarding such a transaction; they can also deal with an account or relationship with
the customer
Unsolicited messages must meet certain standards
They cannot contain false or misleading information (including in the header)
They must contain a means to reply (a return address) for means of opting out
of future messages
E-Mail: CAN-SPAM Act
48 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Junk Fax Prevention Act
Similar to Do-Not-Call Rules and CAN-SPAM
Prevents “unsolicited advertisements” via fax unless there is an
established business relationship (EBR)
When there is an EBR, the person sending the fax must obtain the fax number
directly from the recipient or otherwise ensure that the recipient voluntarily
agrees to the make the number available for public distribution
• Voluntary agreement that faxes to that number are acceptable
• Could appear in a directory for public consumption
The send must provide a clear and conspicuous notice and contact information
on the first page of the fax
• This allows the recipient to opt out of future fax transmissions
• Senders must honor opt out requests within 30 days
49 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Online Marketing: COPPA
Children’s Online Privacy Protection Act (COPPA);
applies when:
Web site or online service (games, activities, etc.) directed to
children under 13 and collects personal information from
children; or
Site is directed to general audiences and have knowledge that site
collects personal information from children
Must post “clear and prominent” link to information
practices notice on bank’s home page and at each place
where collecting personal information from children
Larger font size or a different color type on a contrasting
background could be used
50 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Online Marketing: COPPA
Notice requirements:
Must be clearly written and understandable
Include the name, address, telephone number, and email address of the
collector
Types of information collected and how collected
How information is used
Whether information is disclosed to third parties
Procedures where parent can review the child's information, ask to have it
deleted and refuse to allow further collection
Verifiable consent from the child's parent must be obtained before
information can be collected, used or disclosed
Reasonable effort must be made to ensure a parent receives the information
practices notice and consents to it
51 of 51 Marketing and Advertising
Carl Pry
May 24, 2016 Contact Information
Upcoming Webinars
• Current Expected Credit Losses (CECL): How to
Calculate and Maintain a Proper Allowance – May 25
• Loan Participations: What You Should Know – May
26
• Compliance Perspectives: A Monthly Update – May
26
• The Carrot and the Stick: Incentive and Motivation in
the Workplace – May 26
• What to Do When a Customer Dies – June 2
• Game Plan to Pass Your Next Fair Lending Exam –
Ten Steps for Success – June 2
• Basic Underwriting – June 7
• BSA Series: 10 Examination Hot Spots – June 7
• Excel Explained: Pivot Tables – June 8
• Regulation CC - Check Holds – June 8
• Dealing with Subpoenas, Summonses, Garnishments,
Tax Levies, Etc. – June 9
Compliance Questions:
Carl Pry
Treliant Risk Advisors
Webinar/Registration Questions:
Mark Bennett
Total Training Solutions
PO Box 310
Waunakee, WI 53597
1-800-831-0678
www.BankWebinars.com