§ 78A-14. Advertising of Viatical Settlement Contracts. - North Carolina Statutes

§ 78A‑14.  Advertisingof Viatical Settlement Contracts.

(a)        The purpose of thissection is to provide prospective viatical settlement purchasers with clear andunambiguous statements in the advertisement of viatical settlement contractsand to assure the clear, truthful, and adequate disclosure of the benefits,risks, limitations, and exclusions of any contract or purchase agreementoffered or sold. This purpose is intended to be accomplished by theestablishment of guidelines and standards of permissible and impermissibleconduct in the advertising of viatical settlement contracts to assure thatproduct descriptions are presented in a manner that prevents unfair, deceptive,or misleading advertising and is conducive to accurate presentation anddescription of viatical settlement contracts through the advertising media andmaterial used by issuers of viatical settlement contracts and their salesagents.

(b)        This section shallapply to any advertising of viatical settlement contracts intended fordissemination in this State, including Internet advertising viewed by personslocated in this State. Where disclosure requirements are established pursuantto federal regulation, this section shall be interpreted so as to minimize oreliminate conflict with federal regulation wherever possible.

(c)        Every personoffering or selling viatical settlement contracts shall establish and, at alltimes, maintain a system of control over the content, form, and method ofdissemination of all advertisements of these securities. All advertisements,regardless of by whom written, created, designed, or presented, shall be theresponsibility of the issuer. A system of control shall include regular routinenotification, at least once a year, to agents and others authorized by the issuerwho disseminate advertisements of the requirements and procedures for approvalbefore the use of any advertisements not furnished by the issuer.

(d)        Advertisementsshall be truthful and not misleading in fact or by implication. The form andcontent of an advertisement of a contract or purchase agreement, product, orservice shall be sufficiently complete and clear so as to avoid deception. Itshall not have the capacity or tendency to mislead or deceive. Whether anadvertisement has the capacity or tendency to mislead or deceive shall bedetermined by the Administrator from the overall impression that theadvertisement may be reasonably expected to create upon a person of averageeducation or intelligence within the segment of the public to which it is directed.

(e)        Certain viaticalsettlement contract advertisements are deemed false and misleading on theirface and are prohibited. False and misleading viatical settlementadvertisements include, but are not limited to, the following representations:

(1)        "Guaranteed","fully secured", "100 percent secured", "fullyinsured", "secure", "safe", "backed by ratedinsurance companies", "backed by federal law", "backed bystate law", or "state guaranty funds", or similarrepresentations;

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

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

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

(5)        "No salescharges or fees" or similar representations;

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

(7)        Purported favorablerepresentations or testimonials about the benefits of contracts or purchaseagreements as an investment, taken out of context from newspapers, tradepapers, journals, radio and television programs, and all other forms of printand electronic media.

(f)         All informationrequired to be disclosed under this section shall be set out conspicuously andin close conjunction with the statements to which such information relates orunder appropriate captions of such prominence that it shall not be minimized,rendered obscure or presented in an ambiguous fashion, or intermingled with thecontext of the advertisement so as to be confusing or misleading.

(g)        An advertisementshall not:

(1)        Omit materialinformation or use words, phrases, statements, references, or illustrations ifthe omission or use has the capacity, tendency, or effect of misleading ordeceiving purchasers or prospective purchasers as to the nature or extent ofany benefit, loss covered, premium payable, or state or federal taxconsequence. The fact that the contract or purchase agreement offered is madeavailable for inspection before consummation of the sale, or an offer is madeto refund the payment if the purchaser is not satisfied or that the contract orpurchase agreement includes a "free look" period that satisfies orexceeds legal requirements, does not remedy misleading statements.

(2)        Use the name ortitle of a life insurance company or a policy unless the insurer has approvedthe advertisement.

(3)        Represent thatpremium payments will not be required to be paid on the policy that is thesubject of a contract or purchase agreement in order to maintain that policy,unless that is the fact.

(4)        State or imply thatinterest charged on an accelerated death benefit or a policy loan is unfair,inequitable, or in any manner an incorrect or improper practice.

(5)        State or imply thata contract or purchase agreement, benefit, or service has been approved orendorsed by a group of individuals, society, association, or other organizationunless that is the fact and unless any relationship between an organization andthe seller or its agents is disclosed. If the entity making the endorsement ortestimonial is owned, controlled, or managed by the seller or its agents, orreceives any payment or other consideration from the seller or its agents formaking an endorsement or testimonial, that fact shall be disclosed in theadvertisement.

(6)        Contain statisticalinformation unless it accurately reflects recent and relevant facts. The sourceof all statistics used in an advertisement shall be identified.

(7)        Disparage insurers,providers, brokers, dealers, salesmen, insurance producers, policies, services,or methods of marketing.

(8)        Use a trade name,group designation, name of the parent company of an issuer, name of aparticular division of the issuer, service mark, slogan, symbol, or otherdevice or reference without disclosing the name of the issuer, if theadvertisement would have the capacity or tendency to mislead or deceive as tothe true identity of the issuer, or to create the impression that a companyother than the issuer would have any responsibility for the financialobligation under a contract or purchase agreement.

(9)        Use any combinationof words, symbols, or physical materials that by their content, phraseology,shape, color, or other characteristics are so similar to a combination ofwords, symbols, or physical materials used by a government program or agency orotherwise appear to be of such a nature that they tend to mislead prospectivepurchasers into believing that the solicitation is in some manner connectedwith a government program or agency.

(10)      Create the impressionthat the issuer, its financial condition or status, the payment of its claims,or the merits, desirability, or advisability of its contracts or purchaseagreement forms are recommended or endorsed by any government entity.

(h)        The words"free", "no cost", "without cost", "noadditional cost", "at no extra cost", or words of similar importshall not be used with respect to any benefit or service unless true. Anadvertisement may specify the charge for a benefit or a service, may state thata charge is included in the payment, or use other appropriate language.

(i)         Testimonials,appraisals, or analysis used in advertisements must be genuine; represent thecurrent opinion of the author; be applicable to the contract or purchase agreement,product, or service advertised, if any; and be accurately reproduced withsufficient completeness to avoid misleading or deceiving prospective purchasersas to the nature or scope of the testimonials, appraisals, analysis, orendorsement. In using testimonials, appraisals, or analysis, the issuer makesas its own all the statements contained therein, and the statements are subjectto all the provisions of this section.

(j)         If the individualmaking a testimonial, appraisal, analysis, or an endorsement has a financialinterest in the issuer or related entity as a stockholder, director, officer,employee, or otherwise, or receives any benefit directly or indirectly otherthan required union scale wages, that fact shall be prominently disclosed inthe advertisement.

(k)        When an endorsementrefers to benefits received under a contract or purchase agreement, allpertinent information shall be retained for a period of five years after itsuse.

(l)         The name of theissuer shall be clearly identified in all advertisements about the issuer orits contract or purchase agreements, products, or services, and if any specificcontract or purchase agreement is advertised, the contract or purchaseagreement shall be identified either by form number or some other appropriatedescription. If an application is part of the advertisement, the name of theissuer shall be shown on the application.

(m)       An advertisement maystate that issuer is registered in the state where the advertisement appears,provided it does not exaggerate that fact or suggest or imply that a competingissuer may not be so licensed. The advertisement may ask the audience toconsult the issuer's web site or contact the department of insurance and/or thestate securities regulatory agency to find out if the state requires licensingor registration and, if so, whether the issuer or its sales agents arelicensed.

(n)        The name of theactual issuer shall be stated in all of its advertisements. An advertisementshall not use a trade name, any group designation, name of any affiliate orcontrolling entity of the issuer, service mark, slogan, symbol, or other devicein a manner that would have the capacity or tendency to mislead or deceive asto the true identity of the actual issuer or create the false impression thatan affiliate or controlling entity would have any responsibility for thefinancial obligation of the issuer.

(o)        An advertisementshall not directly or indirectly create the impression that any state orfederal governmental agency endorses, approves, or favors:

(1)        Any issuer or itsbusiness practices or methods of operation;

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

(3)        Any contract orpurchase agreement; or

(4)        Any policy or lifeinsurance company.

(p)        If the advertiseremphasizes the speed with which the viatication will occur, the advertisingmust disclose the average time frame from completed application to the date ofoffer and from acceptance of the offer to receipt of the funds by the viator. (2001‑436, s. 7.)