Marketing Compliance 101 Gina Carter Marci Kawski Whyte Hirschboeck Dudek, S.C. Today s Topics 1.Social Media Compliance 2.Data Security (CFPB and FTC) 3.Key Components of Interest Rate Disclosures In Advertising 4.Contests and Sweepstakes Social Media Compliance Definition of Social Media: Form of interactive online communication in which users can generate and share content through text, images, audio and/or video. FFIEC Social Media Guidance Examples: Facebook, Twitter, Flickr and YouTube, LinkedIn, Second Life. 1
Social Media Risk Management FFIEC recommends adoption of a risk management program for social media. Are you using social media to attract and communicate with customers? Remember all regulations relating to advertising of deposit and lending products apply. Social Media Risk Management Highlighted Issues: Advertising and Notice of NCUA Share Insurance Advertising of Nondeposit Investment Products highlight that products are not insured by the NCUA, are not guaranteed by the credit union and subject to investment risk Collecting Information About Consumers Through Social Media the Grammar Leach Bliley Rules and Data Security Guidelines apply Reputational Risks from Social Media customer complaints and employee use risks Note: Manage and monitor social media pursuant to a written policy Endorsements and Testimonials FTC has issued guidelines that prohibit certain deceptive activities in the form of endorsements and testimonials. Definition of Endorsements and Testimonials: Endorsement Message provided by consumer, organization, expert or celebrity to encourage use of a product or service. Testimonial Story or account of a consumer s experience using a product or service. 2
Endorsements and Testimonials The FTC Guides prohibit: 1. Endorsements made by people without actual knowledge of the goods and services they are promoting; 2. Testimonials that reflect atypical results from use of products or services; and 3. Endorsements and testimonials made by a party who is sponsored by the advertiser, rather than an independent, unbiased party, and that sponsorship relationship is not disclosed. Endorsements and Testimonials Endorsements may not contain deceptive representations. Endorsements must reflect the honest opinions and experiences of the endorser. Endorser s representations must be able to be substantiated. Advertisements must use actual customers or conspicuously disclose the persons are not actual customers. Any endorsement made by someone claiming to be an expert must in fact have expert qualifications. All material connections between the endorser and advertiser must be disclosed. What Constitutes a Sponsorship? Determined on a Case by case Basis. Key is whether the endorser: 1. Is acting independently and therefore there is no endorsement; or 2. Is acting on behalf of the advertiser or its agent, such that the speaker s statement is and endorsement, in that it is part of an overall marketing campaign. *A sponsorship naturally exists with employees. 3
FTC Guides Should Be Reviewed and Incorporated Into Credit Union s Social Media and On Line Marketing Policies Websites and Data Security Any website representations about privacy and data security must be carefully complied with. Recent CFPB Consent Decree issued vs. Dwolla Inc. Dwolla CFPB Consent Order Dwolla is an online payment platform that facilitates consumer transactions, which requires users to provide sensitive information such as bank account numbers and Social Security Numbers This consent order represents the CFPB s first enforcement action in the area of data security, which has traditionally been monitored by the FTC The CFPB used its Unfair Deceptive and Abusive Acts or Practices (UDAAP) enforcement authority under Dodd Frank in claiming that Dwolla engaged in deceptive acts and practices relating to false representations regarding their data security practices 4
Dwolla CFPB Consent Order Dwolla made a number of assertions regarding the efficacy of its data security practices, including that it exceed[s] industry standards, sets new precedent for the industry for safety and security, and encrypts data utilizing the same standards required by the federal government The CFPB found these and similar material representations to be overstated, which, because they were likely to affect a consumer s choice or conduct regarding whether to become a member of Dwolla s network, constitutes deceptive acts or practices in violation of the Consumer Financial Protection Act It also determined that Dwolla s employees were not sufficiently trained on how to handle sensitive consumer data Key Components of Interest Rate Disclosures in Advertising Applicable Law Truth in Lending Act, 15 USC 1601 Regulation Z, 12 CFR 1026 Federal Trade Commission Unfair, Deceptive, and Abusive Practices ( UDAAP ) 5
Interest Rate Disclosures Special Advertising Sections in TILA for: Open end Credit (e.g. home equity loans and Credit Cards) Closed end Credit (e.g., mortgage loans, auto loans) Interest Rate Disclosures What is an Advertisement? A commercial message in any medium that promotes, directly or indirectly, a credit transaction. Interest Rate Disclosures Must advertise only actually available terms. But, is that all you have to consider? 6
Interest Rate Disclosures Open End Generally, any periodic rate that may be applied expressed as an Annual Percentage Rate must be disclosed when certain terms are advertised affirmatively or negatively. For example: No Finance Charge! No Late Payment Fees! If the plan provides for a variable periodic rate, this must be disclosed. Interest Rate Disclosures Open End Secured by Home The APR advertised may be given as of a specified recent date (or the current rate). If this were a teaser rate, additional disclosures would have to be shown. Introductory or intro should be in close proximity to this disclosure. Interest Rate Disclosures Open End Not Home Secured The APR that will apply after the promotional period must be disclosed. This is a promotional rate, triggering disclosure of when the rate will end. 7
Closed End Credit If any rate of finance charge is disclosed, it must be stated as the Annual Percentage Rate or APR. Credit Not Secured by Dwelling: No other rates may be advertised, except for an simple annual interest rate or periodic rate stated in conjunction with the APR. Credit Secured by Dwelling: No other rates may be advertised, except for an simple annual interest rate stated in conjunction with the APR. Promotions Contests, Sweepstakes and Lotteries Lotteries prohibited under Federal and State law Certain promotions may be deemed lotteries if care is not taken Severe penalties civil and criminal What is a Lottery? A PRIZE CONSIDERATION (payment, opening an account, making a purchase, filling out a detailed survey) CHANCE You must remove one of these elements to ensure your promotion is not an illegal lottery. 8
Contests A contest awards prizes based on skill. Examples: art contests, essay contests, cooking contests. There is no CHANCE element in a contest because the winner is selected for submitting the best work, rather than being randomly selected. Sweepstakes A sweepstakes awards prizes based on luck or chance. All sweepstakes have the elements of a prize and chance, so it is essential to ensure there is no consideration required. If there is any form of consideration involved, you must provide a FREE ALTERNATIVE METHOD OF ENTRY (FAME). But customers must be made aware of the FAME and the entries must count. Lots of Gray Areas If in doubt, add a FAME. Examples: Traditional: mail in card Slightly Updated: online form Considerations for FAME. Make sure applicants know about it Make sure odds are the same no matter how participant enters 9
Know What Laws & Policies Apply Federal Laws State Laws wherever entrants are LOCATED Foreign laws Social Media Rules / Policies Restrict as Needed Exclude certain countries / states Be aware of registration / bond / reporting requirements Rhode Island, New York, Florida, Quebec. Important: Not enough to simply state it in your rules. If you are not letting Rhode Island residents enter, make sure your winner is not from Rhode Island. Know your rules and follow them!! Promotion Rules Almost all state and federal laws require certain disclosures to all entrants of contests. Develop rules and Make them very clear to entrants. 10
QUESTIONS? Some Recent News! As of July 1, 2016, Whyte Hirschboeck Dudek, S.C. will merge with Husch Blackwell LLP A Midwestern based firm with 18 locations in the U.S. The Credit Union Team of WHD will, as always, be ready and willing to assist your credit unions and CUSOs as it has been doing for many years. Questions? Call Gina Carter at 608 234 6058 or email gcarter@whdlaw.com. 11