This One Weird Word Could Blow Up Your Sales Standard: NAFA to NAIC

The general counsel of the National Association for Fixed Annuities has some advice for state insurance regulators: Keep the word “prudence” out of any new standards for sellers of annuities,

Pamela Heinrich, NAFA’s top legal officer, included that thought in a letter commenting on efforts by the National  Association of Insurance Commissioners (NAIC) to update the NAIC’s annuity suitability model regulation.

(Related: Please Harmonize With SEC Reg BI: Insurance Groups to NAIC)

The Annuity Suitability Working Group, part of the NAIC’s Life Insurance and Annuities Committee, has posted a total of 18 letters commenting on a new suitability update draft on the working group’s section of the NAIC’s website.

The NAIC is a group for state insurance regulators. States often use NAIC models when developing their own insurance laws, regulations and consumer education materials.

Heinrich says NAFA supports efforts to improve disclosure requirements, and to improve explanations for annuity recommendations.

But NAFA opposes any provisions that might require insurance producers to get new licenses, define insurance producers or insurers as fiduciaries, or “harmonize” with the work of other regulatory bodies in ways that might harm independent annuity distributors, Heinrich writes.

Heinrich also includes a note about drafting.

She says the current working group draft states that a producer or insurer would be complying with the model regulation update if the producer or insurer were “‘[a]acting with reasonable, diligence, care, skill, and prudence.’”

“It is difficult to argue that producers shouldn’t act with reasonable diligence, care, or skill when making a recommendation to a prospective client to purchase an annuity,” Heinrich writes. “But, the term ‘prudence’ is a legally-loaded one.”

Keeping the word prudence in the model could create “a legal tripwire for producers,” Heinrich writes.

A tripwire is a wire set up in such a way that bumping into it could set off an explosion.

Producers “will only know after the fact, when subject to administrative or legal action, that they did not meet this amorphous and undefined new requirement of prudence,” Heinrich writes.

Resources

The NAIC has posted a copy of the new suitability draft here.

The comments are available here, under the “Related Documents” tab.

— Read Producer Groups Sue Over New York State Sales Standard Regs, on ThinkAdvisor.

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