CHAPTER 58-33A
STANDARDS FOR ADVERTISEMENT, SOLICITATION, AND SALE OF LIFE AND HEALTH INSURANCE
58-33A-1 Applicability of chapter.
58-33A-2 Purpose of chapter.
58-33A-3 Advertisement defined.
58-33A-4 Certain material and communication not deemed to be advertisement.
58-33A-5 Outline of coverage to accompany all health insurance policies or subscriber contracts--Acknowledgment of receipt or certificate of delivery.
58-33A-6 Format and content of outline of coverage--"Format" defined--Outline of coverage requirements.
58-33A-7 Director authorized to promulgate rules--Scope of rules.
58-33A-8 Required disclosures to be clear and conspicuous.
58-33A-8.1 Disclosure of usual, customary, and reasonable limitation provision required.
58-33A-9 Buyer's guide and policy summary to be provided to all prospective life insurance purchasers--Illustration in lieu of policy summary--Director authorized to promulgate rules.
58-33A-10 Advertisements not to be deceptive or misleading--Standard to be used in determination.
58-33A-11 Insurer to maintain file of advertisements--Division may inspect files--Period for which files must be maintained.
58-33A-12 Director's prior approval may be required--Other remedies not precluded.
58-33A-13 Definitions.
58-33A-14 Recommendations to purchase or exchange annuities subject to requirements.
58-33A-15 Exemptions from requirements.
58-33A-16 Annuity--Best interest standard--Material control or influence.
58-33A-16.1 Annuity--Recommendation--Producer responsibilities.
58-33A-16.2 Recommendation--Producer responsibilities--Applicability and intent.
58-33A-16.3 Considerations for annuity replacement or exchange.
58-33A-16.4 Recommendation--Sale of annuity--Informed consumer.
58-33A-16.5 Recommendation--Sale of annuity--Disclosure to consumer.
58-33A-16.6 Additional disclosure upon request.
58-33A-16.7 Disclosure of producer conflicts of interest required--Certain factors excluded.
58-33A-17 Repealed.
58-33A-17.1 Repealed.
58-33A-18 Conditions resulting in no obligation to consumer.
58-33A-19 Reasonableness under circumstances known to insurer.
58-33A-19.1 Repealed.
58-33A-19.2 Producer obligations--Documentation--Time of recommendation or sale.
58-33A-19.3 Issuance by insurer to be reasonable and address consumer needs.
58-33A-20 Insurer's system for supervising recommendations.
58-33A-20.1 Contract for performance of supervision system functions--Responsibility for corrective action--Supervision of performance.
58-33A-20.2 Prohibited conduct by insurance producer.
58-33A-21 Repealed by SL 2012, ch 250, §§ 15 to 18.
58-33A-25 Compliance with comparable standards by financial professional.
58-33A-25.1 Insurance producer to have adequate knowledge of annuity product--Required training.
58-33A-25.2 Annuity training course providers--Training requirements of other states.
58-33A-25.3 Insurer to verify producer has completed annuity training course.
58-33A-25.4 Authorized insurance business--Other licenses.
58-33A-25.5 Definition of terms--Compliance with Conduct Rules.
58-33A-26 Corrective action for violations.
58-33A-27 Records regarding recommendations.
58-33A-28 Multi-state plan sale or solicitation of health insurance outside of exchange prohibited.
58-33A-1. Applicability of chapter.
This chapter applies to all individual and group health policies which are solicited or sold in this state that are subject to chapters 58-15, 58-16, 58-17, 58-18, 58-18B, 58-37A, 58-38, 58-39, 58-40, and 58-41. However, this chapter does not apply to insurance policies and subscriber contracts subject to the medicare supplement requirements. Except for the exemptions specified in this section, this chapter applies to any solicitation, negotiation, or effectuation of life insurance occurring within this state. This chapter applies to any issuer of life insurance contracts including fraternal benefit societies. This chapter does not apply to:
(1) Group annuities;
(2) Credit life insurance;
(3) Group life insurance (except for disclosures relating to preneed funeral contracts or prearrangements as provided by this chapter. These disclosure requirements extend to the issuance or delivery of certificates as well as to the master policy);
(4) Life insurance policies issued in connection with pension and welfare plans as defined by and which are subject to the federal Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. Section 1001 et seq. as amended to January 1, 1999; or
(5) Variable life insurance under which the amount or duration of the life insurance varies according to the investment experience of a separate account.
Source: SL 1999, ch 240, § 1; SL 2000, ch 251, § 2; SL 2012, ch 250, § 19.
58-33A-2. Purpose of chapter.
The purpose of this chapter is to establish guidelines and permissible and impermissible standards of conduct in the solicitation of and advertising of life and health insurance in a manner which:
(1) Prevents unfair, deceptive, and misleading advertising;
(2) Is conducive to accurate presentation and description to the insurance-buying public through the advertising media and material used by insurance producers and companies;
(3) Provides for the full disclosure of the benefits, limitations, and exclusions of policies sold;
(4) Sets forth minimum standards and guidelines to assure a full and truthful disclosure to the public of all material and relevant information in the advertising of life insurance policies and annuity contracts;
(5) Requires insurers to deliver to purchasers of life insurance information which will improve the buyer's ability to select the most appropriate plan of life insurance for the buyer's needs;
(6) Improves the buyer's understanding of the basic features of the policy which has been purchased or which is under consideration;
(7) Improves the ability of the buyer to evaluate the relative costs of similar plans of life insurance;
(8) Provides reasonable standardization and simplification of terms and coverages of health insurance policies and subscriber contracts of nonprofit hospital, medical, and dental service associations to facilitate public understanding and comparison;
(9) Eliminates provisions contained in health insurance policies and subscriber contracts of nonprofit hospital, medical, and dental service associations which may be misleading or unreasonably confusing in connection either with the purchase of such coverages or with the settlement of claims; and
(10) Provides for full disclosure in the sale of life or health coverages.
Source: SL 1999, ch 240, § 2; SL 2000, ch 251, § 3; SL 2001, ch 286, § 211.
58-33A-3. Advertisement determined.
For the purposes of this chapter, the term, advertisement, includes:
(1) Any printed and published material, audio visual material, and descriptive literature of an insurer used in direct mail, newspapers, magazines, radio scripts, TV scripts, billboards, and similar displays;
(2) Any descriptive literature and sales aids of all kinds issued by an insurer, representative of the insurer, insurance producer, or solicitor for presentation to members of the insurance-buying public, including circulars, leaflets, booklets, depictions, illustrations, internet communications, form letters, and lead-generating devices of all kinds;
(3) Any prepared sales talks, presentations, and material for use by representatives of the insurer, insurance producers, and solicitors whether prepared by the insurer or the representative of the insurer, insurance producer, or solicitor; and
(4) Any advertising material included with a policy if the policy is delivered and material is used in the solicitation of renewals and reinstatements.
Source: SL 1999, ch 240, § 3; SL 2000, ch 251, § 4; SL 2001, ch 286, § 212.
58-33A-4. Certain material and communication not deemed to be advertisement.
For the purposes of this chapter, the term, advertisement, does not include:
(1) Any material to be used solely for the training and education of an insurer's employees, representatives, or insurance producers;
(2) Any material used in-house by insurers;
(3) Any communications within an insurer's own organization not intended for dissemination to the public;
(4) Any individual communications of a personal nature with current policyholders other than material urging such policyholders to increase or expand coverages;
(5) Any correspondence between a prospective group or blanket policyholder and an insurer in the course of negotiating a group or blanket contract;
(6) Any court-approved material ordered by a court to be disseminated to policyholders; or
(7) Any general announcement from a group or blanket policyholder to eligible individuals on an employment or membership list that a contract or program has been written or arranged if the announcement clearly indicates that it is preliminary to the issuance of a booklet and the announcement does not describe the benefits under the contract or program or describe advantages as to the purchase of the contract or program.
Source: SL 1999, ch 240, § 4; SL 2000, ch 251, § 5; SL 2001, ch 286, § 213.
58-33A-5. Outline of coverage to accompany all health insurance policies or subscriber contracts--Acknowledgment of receipt or certificate of delivery.
In order to provide for full and fair disclosure in the sale of health insurance policies or subscriber contracts of a nonprofit hospital, medical, or dental service association, no such policy or contract may be delivered or issued for delivery in this state unless the outline of coverage described in § 58-33A-6 either accompanies the policy or is delivered to the applicant at the time application is made and an acknowledgment of receipt or certificate of delivery of such outline is provided the insurer. If the policy has been sold through an insurance producer, the outline of coverage shall be delivered at the time of application. If the policy is issued on a basis other than that applied for, the outline of coverage properly describing the policy or contract shall accompany the policy or contract.
Source: SL 1999, ch 240, § 5; SL 2001, ch 286, § 214.
58-33A-6. Format and content of outline of coverage--"Format" defined--Outline of coverage requirements.
The director shall prescribe the general format and content of the outline of coverage required by § 58-33A-5. The term, format, means style, arrangement, and overall appearance, including such items as the size, color, prominence of type, and the arrangement of text and captions. The term, outline of coverage, includes:
(1) A statement identifying the applicable category or categories of coverage provided by the policy or contract as prescribed by the director;
(2) A description of the principal benefits and coverage provided in the policy or contract;
(3) A statement of the exceptions, reductions, and limitations contained in the policy or contract;
(4) A statement of the renewal provisions including any reservation by the insurer of nonprofit hospital, medical, or dental service association of a right to change premiums; and
(5) A statement that the outline is a summary of the policy or contract issued or applied for and that the policy or contract should be consulted to determine governing contractual provisions.
Nothing in this section prohibits an insurer from incorporating an outline of coverage into other solicitation and policy information documents if the required information is contained in the documents.
Source: SL 1999, ch 240, § 6.
58-33A-7. Director authorized to promulgate rules--Scope of rules.
The director may promulgate rules pursuant to chapter 1-26 to establish specific standards consistent with § 58-33A-2. The rules may include standards of full and fair disclosure, that set forth the manner, content, and required disclosure. Except for conversion policies issued pursuant to a contractual conversion privilege under a group, the rules may apply to the sale of individual and group health insurance subject to this chapter and shall be in addition to and in accordance with applicable laws of this state. The rules may include:
(1) Terms of renewability;
(2) Initial and subsequent conditions of eligibility;
(3) Nonduplication of coverage provisions;
(4) Coverage of dependents;
(5) Preexisting conditions;
(6) Termination of insurance;
(7) Probationary periods;
(8) Limitations, exceptions, and reductions;
(9) Elimination periods;
(10) Requirements for replacement;
(11) Recurrent conditions;
(12) Prohibitions on the use of terms, information, phrases, or implied affiliations in advertising;
(13) Prominence, form, and style of any advertisement;
(14) Information to be disclosed on advertising or solicitation materials;
(15) Use of testimonials;
(16) Special offers or enrollment periods;
(17) Coverage comparisons;
(18) Identification of insurers, representatives of the insurers and insurance producers;
(19) Prearrangements or preneed funeral contracts; and
(20) The definition of terms including the following: hospital, accident, sickness, injury, physician, accidental means, total disability, partial disability, nervous disorder, guaranteed renewable and noncancellable.
Source: SL 1999, ch 240, § 7; SL 2000, ch 251, § 6; SL 2001, ch 286, § 215.
58-33A-8. Required disclosures to be clear and conspicuous.
Any information required to be disclosed by rules promulgated pursuant to this chapter shall be set out conspicuously and in close conjunction with the statements to which the information relates or under appropriate captions of such prominence that it does not minimize, render obscure, present in an ambiguous fashion, or intermingle with the context of the advertisement so as to be confusing or misleading.
Source: SL 1999, ch 240, § 8; SL 2000, ch 251, § 7.
58-33A-8.1. Disclosure of usual, customary, and reasonable limitation provision required.
Any insurer that is subject to § 58-33A-1 offering to provide health benefits in this state through a policy, contract, or certificate that contains a provision limiting coverage to usual, customary, or reasonable charges shall provide prominent disclosure that the policy, certificate, or contract contains a usual, customary, and reasonable limitation and that this limitation may cause the insured to incur additional out-of-pocket expenses. An insurer may comply with this section by including the required disclosure in an outline of coverage.
Source: SL 2000, ch 251, § 1.
58-33A-9. Buyer's guide and policy summary to be provided to all prospective life insurance purchasers--Illustration in lieu of policy summary--Director authorized to promulgate rules.
Prior to accepting the applicant's initial premium or premium deposit, the insurer shall provide, to all prospective life insurance purchasers, a buyer's guide, and a policy summary. However, in lieu of a policy summary, an insurer may provide an illustration which complies with applicable rules concerning life insurance illustrations. Insurers may deliver the buyer's guide and policy summary or illustration at other times as specified by the director by rule. The director may also promulgate rules pursuant to chapter 1-26 specifying the type of policy summary required, the form and content of policy summaries, the specific buyer's guide to be used, and if the buyer's guide must be provided.
Source: SL 1999, ch 240, § 9.
58-33A-10. Advertisements not to be deceptive or misleading--Standard to be used in determination.
Any advertisements shall be truthful and not materially misleading in fact or by implication. The form and content of an advertisement of a policy shall be sufficiently complete and clear so as to avoid deception. No advertisement may have the capacity and tendency to materially mislead or deceive. In determining whether an advertisement has the capacity and tendency to materially mislead or deceive, the director shall make the determination from the overall impression that the advertisement may be reasonably expected to create upon a person of average education or intelligence within the segment of the public to which it is directed.
Source: SL 1999, ch 240, § 10.
58-33A-11. Insurer to maintain file of advertisements--Division may inspect files--Period for which files must be maintained.
Each insurer shall maintain at its home or principal office a complete file containing a specimen copy of every printed, published, or prepared advertisement of its policies and specimen copies of typical printed, published, or prepared advertisements of its blanket, franchise, and group policies where the content of advertisements vary dependent upon coverage options, hereafter disseminated in this state, with a notation indicating the manner and extent of distribution and the form number of any policy advertised. The file may be kept electronically. The division may inspect the file. All advertisements shall be maintained in the file for a period of either five years or until the filing of the next regular report on the examination of the insurer pursuant to chapter 58-3, whichever is the longer period of time.
Source: SL 1999, ch 240, § 11.
58-33A-12. Director's prior approval may be required--Other remedies not precluded.
If the director has reason to believe that an advertisement has the capacity and tendency to mislead or deceive the public or otherwise does not comply with this chapter or the rules promulgated pursuant to this chapter, the director may require an insurer or insurance producer to submit all or any part of the advertising material for review or approval prior to use, in addition to any other remedies allowed by law.
Source: SL 1999, ch 240, § 12; SL 2000, ch 251, § 8.
58-33A-13. Definitions.
Terms used in §§ 58-33A-14 to 58-33A-27, inclusive, mean:
(1) "Annuity," an annuity that is an insurance product under state law that is individually solicited, whether the product is classified as an individual or group annuity;
(2) "Cash compensation," any discount, concession, fee, service fee, commission, sales charge, loan, override, or cash benefit received by a producer in connection with the recommendation or sale of an annuity from an insurer, intermediary, or directly from the consumer;
(3) "Consumer profile information," information that is reasonably appropriate to determine whether a recommendation addresses the consumer’s financial situation, insurance needs, and financial objectives, including, at a minimum, the following:
(a) Age;
(b) Annual income;
(c) Financial situation and needs, including debts and other obligations;
(d) Financial experience;
(e) Insurance needs;
(f) Financial objectives;
(g) Intended use of the annuity;
(h) Financial objectives;
(i) Existing assets or financial products, including investment, annuity and insurance holdings;
(j) Liquidity needs;
(k) Liquid net worth;
(l) Risk tolerance, including but not limited to, willingness to accept non-guaranteed elements in the annuity;
(m) Financial resources used to fund the annuity; and
(n) Tax status;
(4) "FINRA," the Financial Industry Regulatory Authority or a succeeding agency;
(5) "Intermediary," an entity contracted directly with an insurer or with another entity contracted with an insurer to facilitate the sale of the insurer’s annuities by producers;
(6) "Material conflict of interest," a financial interest of the producer in the sale of an annuity that a reasonable person would expect to influence the impartiality of a recommendation. Material conflict of interest does not include cash compensation or non-cash compensation;
(7) "Non-cash compensation," any form of compensation that is not cash compensation including health insurance, office rent, office support, and retirement benefits;
(8) "Non-guaranteed elements," the premiums, credited interest rates including any bonus, benefits, values, dividends, non-interest based credits, charges, or elements of formulas used to determine any of these, that are subject to company discretion and are not guaranteed at issue. An element is considered non-guaranteed if any of the underlying non-guaranteed elements are used in its calculation;
(9) "Producer," a person or entity required to be licensed under the laws of this state to sell, solicit or negotiate insurance, including annuities. This term also includes an insurer where no producer is involved;
(10) "Recommendation," advice provided by a producer to an individual consumer that was intended to result or results in a purchase, replacement, or exchange of an annuity in accordance with that advice. This term does not include general communication to the public, generalized customer services assistance or administrative support, general educational information and tools, prospectuses, or other product and sales material. The term does not include presentation of illustrations or showing multiple products to educate and explain to the consumer the options available;
(11) "Replacement,” a transaction in which a new annuity is to be purchased, and it is known or should be known to the proposing producer, or to the proposing insurer whether or not a producer is involved, that by reason of the transaction, an existing annuity or other insurance policy has been or is to be any of the following:
(a) Lapsed, forfeited, surrendered, partially surrendered, assigned to the replacing insurer, or otherwise terminated;
(b) Converted to reduced paid-up insurance, continued as extended term insurance, or otherwise reduced in value by the use of nonforfeiture benefits or other policy values;
(c) Amended so as to effect either a reduction in benefits or in the term for which coverage would otherwise remain in force or for which benefits would be paid;
(d) Reissued with any reduction in cash value; or
(e) Used in a financed purchase; and
(12) "SEC," the United States Securities and Exchange Commission.
Source: SL 2008, ch 273, § 1; SL 2022, ch 186, § 1, eff. Jan. 1, 2023; SL 2023, ch 168, § 1.
58-33A-14. Recommendations to purchase or exchange annuities subject to requirements.
Sections 58-33A-13 to 58-33A-27, inclusive, apply to any recommendation or sale of an annuity. The purpose of §§ 58-33A-13 to 58-33A-27, inclusive, is to require producers, as defined in § 58-33A-13, to act in the best interest of the consumer when making a recommendation of an annuity and to require insurers to establish and maintain a system to supervise recommendations so that the insurance needs and financial objectives of consumers at the time of the transaction are effectively addressed. Nothing in §§ 58-33A-13 to 58-33A-27, inclusive, creates or implies a private cause of action for a violation of §§ 58-33A-13 to 58-33A-27, inclusive, or subjects a producer to civil liability under the best interest standard of care outlined in § 58-33A-16 or under standards governing the conduct of a fiduciary or a fiduciary relationship.
Source: SL 2008, ch 273, § 2; SL 2022, ch 186, § 2, eff. Jan. 1, 2023.
58-33A-15. Exemptions from requirements.
Unless otherwise specifically included, §§ 58-33A-13 to 58-33A-27, inclusive, do not apply to any transactions involving:
(1) A direct response solicitation if there is no recommendation based on information collected from the consumer pursuant to §§ 58-33A-13 to 58-33A-27, inclusive; or
(2) Any contract used to fund:
(a) An employee pension or welfare benefit plan that is covered by the Employee Retirement and Income Security Act (ERISA);
(b) A plan described by sections 401(a), 401(k), 403(b), 408(k), or 408(p) of the Internal Revenue Code (IRC), as of January 1, 2023, if established or maintained by an employer;
(c) A government or church plan defined in section 414 of the IRC as of January 1, 2023, a government or church welfare benefit plan, or a deferred compensation plan of a state or local government or tax exempt organization under section 457 of the IRC as of January 1, 2023; or
(d) A nonqualified deferred compensation arrangement established or maintained by an employer or plan sponsor;
(3) A settlement of or assumption of liabilities associated with personal injury litigation or any dispute or claim resolution process; or
(4) A formal prepaid funeral contract.
The director may, by rules promulgated pursuant to chapter 1-26, adopt revisions of the Internal Revenue Code which are in substantial compliance with the intent of subsections (b) and (c) of this section.
Source: SL 2008, ch 273, § 3; SL 2022, ch 186, § 3, eff. Jan. 1, 2023.
58-33A-16. Annuity--Best interest standard--Material control or influence.
A producer, when making a recommendation of an annuity, shall act in the best interest of the consumer under the circumstances known at the time the recommendation is made, without placing the producer’s or the insurer’s financial interest ahead of the consumer’s interest. For purposes of this section, a producer has acted in the best interest of the consumer by satisfying the obligations regarding care in §§ 58-33A-16.1 to 58-33A-16.3, inclusive, disclosure in §§ 58-33A-16.4 to 58-33A-16.6, inclusive, conflict of interest in § 58-33A-16.7, and documentation in § 58-33A-19.2. Any requirement applicable to a producer under §§ 58-33A-13 to 58-33A-27, inclusive, must apply to every producer who has exercised material control or influence in the making of a recommendation and has received direct compensation as a result of the recommendation or sale, regardless of whether the producer has had any direct contact with the consumer. Activities such as providing or delivering marketing or educational materials, product wholesaling or other back-office product support, and general supervision of a producer do not, in and of themselves, constitute material control or influence.
The following acts, when considered in isolation, do not constitute material control or influence:
(1) Receipt of override commissions;
(2) Transmittal of documents, including application to insurers; and
(3) Providing illustrations and quotes.
Source: SL 2008, ch 273, § 4; SL 2012, ch 250, § 1; SL 2022, ch 186, § 4, eff. Jan. 1, 2023; SL 2023, ch 168, § 2.
58-33A-16.1. Annuity--Recommendation--Producer responsibilities.
Producers must, in making a recommendation:
(1) Exercise reasonable diligence, care, and skill to:
(a) Know the consumer’s financial situation, insurance needs, and financial objectives;
(b) Understand the available recommendation options after making a reasonable inquiry into options available to the producer;
(c) Have a reasonable basis to believe the recommended option effectively addresses the consumer’s financial situation, insurance needs, and financial objectives over the life of the product as evaluated in light of the consumer profile information; and
(d) Communicate the basis or bases of the recommendation;
(2) Make reasonable efforts to obtain consumer profile information from the consumer prior to the recommendation of an annuity;
(3) Consider the types of products the producer is authorized and licensed to recommend or sell that address the consumer’s financial situation, insurance needs, and financial objectives. This does not require analysis or consideration of any products outside the authority and license of the producer or other possible alternative products or strategies available in the market at the time of the recommendation. A producer is not considered to be authorized for a product if the producers have no access to that product. The producer must be held to standards applicable to producers with similar authority and licensure; and
(4) Have a reasonable basis to believe the consumer would benefit from certain features of the annuity, such as annuitization, death or living benefit, or other insurance-related features.
Factors generally relevant in making a determination whether an annuity effectively addresses the consumer’s financial situation, insurance needs, and financial objectives include the consumer profile information, characteristics of the insurer, product costs, rates, benefits, and features. The level of importance of each factor in this section may vary depending on the facts and circumstances of a particular case, but each factor may not be considered in isolation.
Source: SL 2022, ch 186, § 7, eff. Jan. 1, 2023; SL 2023, ch 168, § 3.
58-33A-16.2. Recommendation--Producer responsibilities--Applicability and intent.
The requirements of § 58-33A-16.1:
(1) Apply to the particular annuity as a whole, the underlying subaccounts to which funds are allocated at the time of purchase or exchange of an annuity, and riders and similar product enhancements;
(2) Create a regulatory obligation but do not create a fiduciary obligation or relationship;
(3) Do not mean the annuity with the lowest one-time or multiple occurrence compensation structure shall necessarily be recommended; and
(4) Do not mean the producer has ongoing monitoring obligations, although such an obligation may be separately owed under the terms of a fiduciary, consulting, investment advising, or financial planning agreement between the consumer and the producer.
Source: SL 2022, ch 186, § 8, eff. Jan. 1, 2023.
58-33A-16.3. Considerations for annuity replacement or exchange.
In the case of an exchange or replacement of an annuity, the producer shall consider the whole transaction, which include taking into consideration whether:
(1) The consumer will incur a surrender charge, be subject to the commencement of a new surrender period, lose existing benefits, such as death, living, or other contractual benefits, or be subject to increased fees, investment advisory fees, or charges for riders and similar product enhancements;
(2) The replacing product would substantially benefit the consumer in comparison to the replaced product over the life of the product; and
(3) The consumer has had another annuity exchange or replacement and, in particular, an exchange or replacement within the preceding sixty months.
Source: SL 2022, ch 186, § 9, eff. Jan. 1, 2023.
58-33A-16.4. Recommendation--Sale of annuity--Informed consumer.
Prior to or at the time of the recommendation or sale of an annuity, the producer shall have a reasonable basis to believe the consumer has been informed of various features of the annuity including the potential surrender period and surrender charge, potential tax penalty if the consumer sells, exchanges, surrenders, or annuitizes the annuity, mortality and expense fees, investment advisory fees, any annual fees, potential charges for and features of riders or other options of the annuity, limitations on interest returns, potential changes in non-guaranteed elements of the annuity, insurance and investment components, and market risk.
Source: SL 2022, ch 186, § 11, eff. Jan. 1, 2023.
58-33A-16.5. Recommendation--Sale of annuity--Disclosure to consumer.
Prior to or at the time of the recommendation or sale of an annuity, the producer shall prominently disclose to the consumer on a form substantially similar to the form prescribed by the director and available on the division’s website:
(1) A description of the scope and terms of the relationship with the consumer and the role of the producer in the transaction;
(2) An affirmative statement on whether the producer is licensed and authorized to sell the following products:
(a) Fixed annuities;
(b) Fixed indexed annuities;
(c) Variable annuities;
(d) Life insurance;
(e) Mutual funds;
(f) Stocks and bonds; and
(g) Certificates of deposit;
(3) An affirmative statement describing the insurers the producer is authorized, contracted, appointed, or otherwise able to sell insurance products for using the following descriptions:
(a) From one insurer;
(b) From two or more insurers; or
(c) From two or more insurers although primarily contracted with one insurer;
(4) A description of the sources and types of cash compensation and non-cash compensation to be received by the producer, including whether the producer is to be compensated for the sale of a recommended annuity by commission as part of premium or other remuneration received from the insurer, intermediary, or other producer or by fee as a result of a contract for advice or consulting services; and
(5) A notice of the consumer’s right to request additional information regarding cash compensation described in § 58-33A-16.6.
Source: SL 2022, ch 186, § 12, eff. Jan. 1, 2023.
58-33A-16.6. Additional disclosure upon request.
Upon request of the consumer or the consumer’s designated representative, the producer shall disclose:
(1) A reasonable estimate of the amount of cash compensation to be received by the producer, which may be stated as a range of amounts or percentages; and
(2) Whether the cash compensation is a one-time or multiple occurrence amount, and if a multiple occurrence amount, the frequency and amount of the occurrence, which may be stated as a range of amounts or percentages.
Source: SL 2022, ch 186, § 13, eff. Jan. 1, 2023.
58-33A-16.7. Disclosure of producer conflicts of interest required--Certain factors excluded.
A producer shall identify and avoid or reasonably manage and disclose material conflicts of interest, including material conflicts of interest related to an ownership interest. The following factors, when considered in isolation, are not material conflicts of interest:
(1) The producer has a minority ownership in an insurer or licensed business entity;
(2) The producer has a majority ownership in a licensed business entity, if the ownership is conspicuously disclosed to the consumer; or
(3) An immediate family member is employed by a licensed business entity.
Source: SL 2022, ch 186, § 14, eff. Jan. 1, 2023; SL 2023, ch 168, § 4.
58-33A-18. Conditions resulting in no obligation to consumer.
Except as provided pursuant to § 58-33A-19, a producer has no obligation to a consumer under §§ 58-33A-16.1 to 58-33A-16.3, inclusive, and § 58-33A-17 related to any annuity transaction if:
(1) A consumer refuses to provide relevant consumer profile information and the annuity transaction is not recommended;
(2) A consumer decides to enter into an annuity transaction that is not based on a recommendation of the producer;
(3) A recommendation was made and was later found to have been prepared based on materially inaccurate information provided by the consumer; or
(4) No recommendation is made.
Source: SL 2008, ch 273, § 6; SL 2012, ch 250, § 4; SL 2022, ch 186, § 10, eff. Jan. 1, 2023.
58-33A-19. Reasonableness under circumstances known to insurer.
An insurer's issuance of an annuity subject to § 58-33A-18 shall be reasonable under all the circumstances actually known to the insurer at the time the annuity is issued.
Source: SL 2008, ch 273, § 7; SL 2012, ch 250, § 5; SL 2022, ch 186, § 17, eff. Jan. 1, 2023.
58-33A-19.2. Producer obligations--Documentation--Time of recommendation or sale.
A producer shall, at the time of the recommendation or sale:
(1) Make a written record of any recommendation and the basis for the recommendation subject to the obligations required in §§ 58-33A-13 to 58-33A-27, inclusive;
(2) Obtain a consumer signed statement on a form substantially similar to the form prescribed by the director and available on the division’s website documenting:
(a) A customer’s refusal to provide the consumer profile information, if any;
(b) A customer’s understanding of the ramifications of not providing his or her consumer profile information or providing insufficient consumer profile information; and
(3) Obtain a consumer signed statement acknowledging the annuity transaction is not recommended if a customer decides to enter into an annuity transaction that is not based on the producer’s recommendation on a form substantially similar to a form prescribed by the director.
Source: SL 2022, ch 186, § 15, eff. Jan. 1, 2023.
58-33A-19.3. Issuance by insurer to be reasonable and address consumer needs.
Except as permitted under §§ 58-33A-18 and 58-33A-19, an insurer may not issue an annuity recommended to a consumer unless there is a reasonable basis to believe the annuity would effectively address the particular consumer’s financial situation, insurance needs, and financial objectives based on the consumer’s profile information.
Source: SL 2022, ch 186, § 19, eff. Jan. 1, 2023.
58-33A-20. Insurer's system for supervising recommendations.
An insurer shall establish and maintain a supervision system that is reasonably designed to achieve compliance with §§ 58-33A-13 to 58-33A-27, inclusive, including:
(1) The insurer shall establish and maintain reasonable procedures to inform its producers of the requirements of §§ 58-33A-16 to 58-33A-26, inclusive and shall incorporate the requirements of this regulation into relevant producer training manuals;
(2) The insurer shall establish and maintain standards for producer product training and shall establish and maintain reasonable procedures to require its producers to comply with the requirements of §§ 58-33A-25.1 to 58-33A-25.3, inclusive;
(3) The insurer shall provide product-specific training and training materials that explain all material features of its annuity products to its producers;
(4) The insurer shall establish and maintain procedures for review of each recommendation prior to issuance of an annuity that are designed to ensure that there is a reasonable basis to determine that the recommended annuity would effectively address the particular consumer's financial situation, insurance needs, and financial objectives. Such review procedures may apply a screening system for the purpose of identifying selected transactions for additional review and may be accomplished electronically or through other means including, physical review. Such an electronic or other system may be designed to require additional review only of those transactions identified for additional review by the selection criteria;
(5) The insurer shall establish and maintain reasonable procedures to detect recommendations that are not in compliance with §§ 58-33A-13 to 58-33A-27, inclusive. This may include confirmation of consumer profile information, systematic customer surveys, producer and consumer interviews, confirmation letters, producer statements or attestations, and programs of internal monitoring. Nothing in this subdivision prevents an insurer from complying with this subdivision by applying sampling procedures or by confirming consumer profile information or other required information after issuance or delivery of the annuity;
(6) The insurer shall annually provide a written report to senior management, including to the senior manager responsible for audit functions, that details a review, with appropriate testing, reasonably designed to determine the effectiveness of the supervision system, the exceptions found, and corrective action taken or recommended, if any;
(7) The insurer shall establish and maintain reasonable procedures to assess, prior to or upon issuance or delivery of an annuity, whether a producer has provided to the consumer the information required to be provided under this section;
(8) The insurer shall establish and maintain reasonable procedures to identify and address suspicious consumer refusals to provide consumer profile information; and
(9) The insurer shall establish and maintain reasonable procedures to identify and eliminate any sales contests, sales quotas, bonuses, and non-cash compensation that are based on the sales of specific annuities within a limited period of time. The requirements of this subdivision are not intended to prohibit the receipt of health insurance, office rent, office support, retirement benefits, or other employee benefits by employees as long as those benefits are not based upon the volume of sales of a specific annuity within a limited period of time.
Source: SL 2008, ch 273, § 8; SL 2012, ch 250, § 7; SL 2022, ch 186, § 20, eff. Jan. 1, 2023.
58-33A-20.1. Contract for performance of supervision system functions--Responsibility for corrective action--Supervision of performance.
Nothing in § 58-33A-20 or this section restricts an insurer from contracting for performance of a function required under § 58-33A-20, including maintenance of procedures. An insurer is responsible for taking appropriate corrective action and may be subject to sanctions and penalties pursuant to § 58-33A-26 regardless of whether the insurer contracts for performance of a function and regardless of the insurer's compliance with this section.
An insurer's supervision system under § 58-33A-20 and this section shall include supervision of contractual performance under this section. This includes the following:
(1) Monitoring and, as appropriate, conducting audits to assure that the contracted function is properly performed; and
(2) Annually obtaining a certification from a senior manager who has responsibility for the contracted function that the manager has a reasonable basis to represent, and does represent, that the function is properly performed.
An insurer is not required to include in its system of supervision a producer's recommendations to consumers of products other than the annuities offered by the insurer, consideration of or comparison to options available to the producer, or compensation relating to those options other than annuities or other products offered by the insurer.
Source: SL 2012, ch 250, § 8; SL 2022, ch 186, § 21, eff. Jan. 1, 2023.
58-33A-20.2. Prohibited conduct by insurance producer.
No producer or insurer may dissuade, or attempt to dissuade, a consumer from:
(1) Truthfully responding to an insurer's request for confirmation of consumer profile information;
(2) Filing a complaint; or
(3) Cooperating with the investigation of a complaint.
Source: SL 2012, ch 250, § 9; SL 2022, ch 186, § 22, eff. Jan. 1, 2023.
58-33A-21 to 58-33A-24. Repealed by SL 2012, ch 250, §§ 15 to 18.
58-33A-25. Compliance with comparable standards by financial professional.
Recommendations and sales of annuities made in compliance with comparable standards shall satisfy the requirements of §§ 58-33A-13 to 58-33-27, inclusive. This section applies to all recommendations and sales of annuities made by financial professionals in compliance with business rules, controls, and procedures that satisfy a comparable standard even if such standard would not otherwise apply to the product or recommendation at issue. For this section to apply, an insurer shall:
(1) Monitor the relevant conduct of the financial professional seeking to rely on this section or the entity responsible for supervising the financial professional, such as the financial professional’s broker-dealer or an investment adviser registered under federal or state securities laws using information collected in the normal course of an insurer's business; and
(2) Provide to the entity responsible for supervising the financial professional seeking to rely on this section, such as the financial professional’s broker-dealer or investment adviser registered under federal or state securities laws, information and reports that are reasonably appropriate to assist the entity to maintain its supervision system.
Nothing in this section shall limit the director’s ability to investigate and enforce the provisions of §§ 58-33A-13 to 58-33A-27, inclusive, or limit the insurer’s obligation to comply with § 58-33A-20(4), although the insurer may base its analysis on information received from either the financial professional or the entity supervising the financial professional.
Source: SL 2008, ch 273, § 13; SL 2012, ch 250, § 10; SL 2022, ch 186, § 24, eff. Jan. 1, 2023.
58-33A-25.1. Insurance producer to have adequate knowledge of annuity product--Required training.
No producer may solicit the sale of an annuity product unless the producer has adequate knowledge of the product to recommend the annuity and the producer is in compliance with the insurer's standards for product training. A producer may rely on insurer-provided product-specific training standards and materials to comply with this section. A producer who engages in the sale of annuity products shall complete a one-time four credit training course approved by the director and provided by a director-approved education provider.
A producer who obtains a life insurance line of authority may not engage in the sale of annuities unless the annuity training course required under this section has been completed. The minimum length of the training required under this section shall be sufficient to qualify for at least four continuing education credits, but may be longer. The training required under this section must include information on the following subjects:
(1) The types of annuities and various classifications of annuities;
(2) Identification of the parties to an annuity;
(3) How product-specific annuity contract features affect consumers;
(4) The application of income taxation of qualified and nonqualified annuities;
(5) The primary uses of annuities; and
(6) Appropriate standard of conduct, sales practices, replacement, and disclosure requirements.
An insurance producer who has completed an annuity training course approved by the division prior to January 1, 2023 shall, within six months, complete either a new four credit training course approved by the division or an additional one-time one credit training course approved by the division and provided by the division-approved education provider on appropriate sales practices, replacement, and disclosure requirements under §§ 58-33A-13 to 58-33A-27, inclusive.
Source: SL 2012, ch 250, § 11; SL 2022, ch 186, § 25, eff. Jan. 1, 2023.
58-33A-25.2. Annuity training course providers--Training requirements of other states.
Each course provider intending to comply with § 58-33A-25.1 shall cover all subjects listed in § 58-33A-25.1. No provider of such course may present any marketing information or provide training on sales techniques or provide specific information about a particular insurer's products. Additional subjects may be offered in conjunction with and in addition to the required subjects. Each provider of an annuity training course intending to comply with § 58-33A-25.1 shall register as a continuing education provider in this state and shall comply with the rules applicable to producer continuing education courses as set forth in chapter 58-30.
An annuity training course may be conducted and completed by classroom or self-study methods. Each provider of annuity training shall comply with the reporting requirements and shall issue certificates of completion in accordance with chapter 58-30. The satisfaction of the training requirements of another state that are substantially similar to the provisions of this section satisfy the training requirements of this section and § 58-33A-25.1. The satisfaction of the components of the training requirements of any course or courses with components substantially similar to § 58-33A-25.1 are be deemed to satisfy the training requirements.
Source: SL 2012, ch 250, § 12; SL 2022, ch 186, § 26, eff. Jan. 1, 2023.
58-33A-25.3. Insurer to verify producer has completed annuity training course.
An insurer shall verify that a producer has completed the annuity training course required pursuant to § 58-33A-25.1 before allowing the producer to sell an annuity product for that insurer. An insurer may satisfy its responsibility under this section by obtaining certificates of completion of the training course or obtaining reports provided by a director-sponsored database system or vendor or from a reasonably reliable commercial database vendor that has a reporting arrangement with an approved insurance education provider.
Source: SL 2012, ch 250, § 13; SL 2022, ch 186, § 27, eff. Jan. 1, 2023.
58-33A-25.4. Authorized insurance business--Other licenses.
Nothing in §§ 58-33A-13 to 58-33A-27, inclusive, should be construed to require a producer to obtain any license other than a producer license with the appropriate line of authority to sell, solicit, or negotiate insurance in this state, including a securities license, in order to fulfill the duties and obligations contained in §§ 58-33A-13 to 58-33A-27, inclusive provided the producer does not give advice or provide services that are otherwise subject to securities laws or engage in any other activity requiring other professional licenses.
Source: SL 2022, ch 186, § 16, eff. Jan. 1, 2023.
58-33A-25.5. Definition of terms--Compliance with Conduct Rules.
The terms used in § 58-33A-25 mean:
(1) "Comparable standards,":
(a) With respect to broker-dealers and registered representatives of broker-dealers, applicable SEC and FINRA rules pertaining to best interest obligations and supervision of annuity recommendations and sales, including 17 C.F.R. § 240.15|-1 (2023);
(b) With respect to investment advisers registered under federal or state securities laws or investment adviser representatives, the fiduciary duties and all other requirements imposed on such investment advisers or investment adviser representatives by contract or under the Investment Advisers Act of 1940 or applicable state securities law, including the Form ADV and interpretations; and
(c) With respect to plan fiduciaries or fiduciaries, the duties, obligations, prohibitions, and all other requirements attendant to such status under Employee Retirement Income Security Act of 1974 (ERISA) or the Internal Revenue Code as of January 1, 2023; and
(2) "Financial professional," a producer that is regulated and acting as:
(a) A broker-dealer registered under federal or state securities laws or a registered representative of a broker-dealer;
(b) An investment adviser registered under federal or state securities laws or an investment adviser representative associated with the federal or state registered investment adviser; or
(c) A plan fiduciary under 29 U.S. Code § 1002(21) (2019) or fiduciary under 26 U.S. Code § 4975(e)(3) (2019).
Source: SL 2022, ch 186, § 23, eff. Jan. 1, 2023.
58-33A-26. Corrective action for violations.
An insurer is responsible for compliance with §§ 58-33A-13 to 58-33A-27, inclusive. If a violation occurs because of the action or inaction of the insurer or its producer, the director may order:
(1) An insurer to take reasonably appropriate corrective action for any consumer harmed by a failure to comply by the insurer, an entity contracted to perform the insurer’s supervisory duties, or by its producer in violation of §§ 58-33A-13 to 58-33A-27, inclusive;
(2) A producer to take reasonably appropriate corrective action for any consumer harmed by the producer's violation of §§ 58-33A-13 to 58-33A-27, inclusive; and
(3) A general agency or independent agency that employs or contracts with a producer to sell, or solicit the sale, of annuities to consumers, to take reasonably appropriate corrective action for any consumer harmed by the producer's violation of §§ 58-33A-13 to 58-33A-27, inclusive.
Any violation of §§ 58-33A-13 to 58-33A-27, inclusive subjects the insurer, producer, or general agency or independent agency to suspension, revocation, refusal to renew a license, or to a monetary penalty as provided for under this title. However, the penalty may be reduced or eliminated, if corrective action for the consumer is taken promptly after a violation is discovered or the violation was not part of a pattern or practice.
Source: SL 2008, ch 273, § 14; SL 2012, ch 250, § 14; SL 2022, ch 186, § 28, eff. Jan. 1, 2023.
58-33A-27. Records regarding recommendations.
Each insurer, general agent, independent agency and producer shall maintain or be able to make available to the director records of the information collected from the consumer, disclosures made to the consumer, including summaries of oral disclosures, and other information used in making the recommendations that were the basis for insurance transactions for five years after the insurance transaction is completed by the insurer. An insurer is permitted, but is not required, to maintain documentation on behalf of a producer.
Any record required to be maintained by §§ 58-33A-13 to 58-33A-27, inclusive, may be maintained in paper, photographic, microprocess, magnetic, mechanical or electronic media or by any process that accurately reproduces the actual document.
Source: SL 2008, ch 273, § 15; SL 2022, ch 186, § 29, eff. Jan. 1, 2023.
58-33A-28. Multi-state plan sale or solicitation of health insurance outside of exchange prohibited.
No multi-state plan as described in Section 1334 of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010) may sell, solicit, negotiate, or otherwise transact health insurance in this state outside of any public exchange which may be operating in this state.
Source: SL 2013, ch 249, § 3.
