Md. Code Regs. 31.09.12.03

Current through Register Vol. 51, No. 22, November 1, 2024

Section 31.09.12.03 - Definitions

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined:

(1) "Annuity" means 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" means 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) "Comparable standards" means:

(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, but not limited to, Regulation Best Interest and any amendments or successor regulations thereto;

(b) With respect to investment advisers registered under federal 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, including, but not limited to, 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 ERISA or the IRC and any amendments or successor statutes thereto.

(4) "Consumer profile information" means 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 time horizon;

(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.

(5) "Continuing education credit" or "CE credit" means 1 hour of continuing education as defined in COMAR 31.03.02.02B(9).

(6) "ERISA" means the Employee Retirement and Income Security Act.

(7) "Financial professional" means a producer that is regulated and acting as:

(a) A broker-dealer registered under federal securities laws or a registered representative of a broker-dealer;

(b) An investment adviser registered under federal securities laws or an investment adviser representative associated with the federal registered investment adviser; or

(c) A plan fiduciary under 29 CFR § 2510.3-21 or fiduciary under 26 U.S.C. § 4975(e)(3), or any amendments or successor statutes thereto.

(8) "FINRA" means the Financial Industry Regulatory Authority or a succeeding agency.

(9) "Insurer" has the meaning stated in Insurance Article, § 1-101(v), Annotated Code of Maryland.

(10) "Intermediary" means 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.

(11) Material Conflict of Interest.

(a) "Material conflict of interest" means 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.

(b) "Material conflict of interest" does not include cash compensation or non-cash compensation.

(12) "Non-cash compensation" means any form of compensation that is not cash compensation, including, but not limited to, health insurance, office rent, office support and retirement benefits.

(13) "Non-guaranteed elements" means the premiums, credited interest rates (including any bonus), benefits, values, dividends, noninterest 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.

(14) "Producer" means:

(a) A licensed insurance producer as defined in Insurance Article, § 1-101(w), Annotated Code of Maryland; and

(b) An insurer if no producer is involved.

(15) "Provider" has the meaning stated in COMAR 31.03.02.02B(15).

(16) Recommendation.

(a) "Recommendation" means advice provided by a producer to an individual consumer that was intended to result or does result in a purchase, an exchange, or a replacement of an annuity in accordance with that advice.

(b) "Recommendation" 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.

(17) "Replacement" has the meaning stated in COMAR 31.09.05.03B(11).

(18) "SEC" means the United States Securities and Exchange Commission.

Md. Code Regs. 31.09.12.03

Regulation .03 amended effective 49:8 Md. 501, eff. 4/18/2022