When the Securities and Exchange Commission adopted Rule 151A on December 17, 2008, the landscape of insurance regulation undeniably changed significantly. Arguably, that Rule sets the stage for federal regulation of many more insurance products.
Although not yet officially published in final form, Rule 151A is more clearly limited in its application to index annuities than when it was first proposed in June 2008. But the analysis that formed the justification for the rule still applies to almost all life insurance and annuity products.
Section 3(a)(8) of the Securities Act of 1933 exempts from SEC regulation an “annuity contract” or an “optional annuity contract” when the contract is issued by a state-regulated insurance company. In the Proposing Release for Rule 151A, the SEC relies on U.S. Supreme Court decisions in concluding that a two-prong test determines whether the exemption applies:
–Does the purchaser or the issuer bear the investment risk?
–And is the product marketed as an investment product?
Significantly, the SEC asserts that defining the terms “insurance” and “annuity contract” is a federal, not state law, question. Where the major break with the past arises is in the determination of what constitutes bearing the investment risk.
The SEC rule requires that a determination be made whether crediting an additional amount, above the guaranteed minimum, is expected. The legal analysis states that “at the time that [an IA] is purchased, the risk for the unknown, unspecified, and fluctuating securities-linked portion of the return is primarily assumed by the purchaser.” If this expectation exists prior to issuance of the contract, the SEC finds investment risk.
In a fixed annuity, the amount credited above that minimum is also unknown and unspecified at the time the contract is purchased. Only the minimum and the first year’s current rate is typically guaranteed at the time of purchase.