P.R. Laws tit. 26, § 4230
The purpose of this section is to provide prospective viators with clear and unambiguous statements in the advertisement of viatical settlements and to assure the clear, truthful and adequate disclosure of the benefits, risks, limitations and exclusions of any viatical settlement. This purpose is intended to be accomplished by the establishment of guidelines and standards of permissible and impermissible conduct in the advertising of viatical settlements to assure that product descriptions are presented in a manner that prevents unfair, deceptive or misleading advertising and is conducive to accurate presentation and description of viatical settlements through the advertising media and material used by authorized persons or entities to negotiate said contracts.
(a) This section shall apply to any advertising of viatical settlements or related products or services intended for dissemination in Puerto Rico, including Internet advertising viewed by persons located in Puerto Rico. Where disclosure requirements are established pursuant to federal regulation, this section shall be interpreted so as to minimize or eliminate conflict with federal regulation whenever possible.
(b) Every person or entity authorized to negotiate viatical settlements shall establish and at all times maintain a system of control over the content, form and method of dissemination of all advertisements of its contracts, products and services. All advertisements, regardless of by whom written, created, designed or presented, shall be the responsibility of the person or entity authorized to negotiate viatical settlements, as well as of the individual who created or presented the advertisement. The system of control shall include a regular routine notification, at least once a year, to agents and others authorized by the authorized person or entity to negotiate viatical settlements to disseminate advertisements of the requirements and procedures for approval prior to the use of any advertisements not furnished by the authorized person or entity.
(c) Advertisements shall be truthful and not misleading in fact or by implication. The form and content of an advertisement of a viatical settlement contract, product or service shall be sufficiently complete and clear so as to avoid deception. It shall not have the capacity or tendency to mislead or deceive. Whether an advertisement has the capacity or tendency to mislead or deceive shall be determined by the Commissioner 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.
(d) The information required to be disclosed under this section shall not be underrated, rendered obscure, or presented in an ambiguous fashion or intermingled with the text of the advertisement so as to be confusing or misleading.
(1) An advertisement shall not omit material information or use words, phrases, statements, references or illustrations if the omission or use has the capacity, tendency or effect of misleading or deceiving viators, as to the nature or extent of any benefit, covered loss, payable premium, or state or federal tax consequence. The fact that the viatical settlement offered is made available for inspection prior to the closing of the sale, or an offer is made to refund the payment if the viator is not satisfied or that the viatical settlement includes a “free look” period that satisfies or exceeds legal requirements, does not remedy misleading statements.
(2) An advertisement shall not use the name or title of an insurer or a life insurance policy unless the advertisement has been approved by the insurer.
(3) An advertisement shall not state or imply that interest charged on an accelerated death benefit or a policy loan is unfair, inequitable or in any manner an incorrect or improper practice.
(4) The words “free”, “no cost”, “without cost”, “no additional cost”, “at no extra cost”, or words of similar import shall not be used with respect to any benefit or service unless true. An advertisement may specify the charge for a benefit or a service or may state that a charge is included in the payment or use other appropriate language.
(5) Testimonials, appraisals or analysis used in advertisements must be genuine; represent the actual opinion of the author; be applicable to the viatical settlement product or service advertised; and be accurately reproduced with sufficient completeness to avoid misleading or deceiving prospective viators. In using testimonials, appraisals or analysis, the person or entity authorized to negotiate viatical settlements makes as its own all the statements contained therein, and the statements are subject to all the provisions of this section.
(A) If the individual making a testimonial, appraisal, analysis or an endorsement has a financial interest in the viatical settlement provider or related entity as a stockholder, director, officer, employee or otherwise, or receives any benefit directly or indirectly other than required union scale wages, that fact shall be prominently disclosed in the advertisement.
(B) An advertisement shall not state or imply that a viatical settlement benefit or service has been approved or endorsed by a group of individuals, society, association or other organization unless that it is indeed the case, and unless any relationship between an organization and the person or entity authorized to negotiate viatical settlements is disclosed. If the entity making the endorsement or testimonial is owned, controlled or managed by the person or entity authorized to negotiate viatical settlements or receives any payment or other consideration from the person or entity authorized to negotiate viatical settlements for making an endorsement or testimonial, that fact shall be disclosed in the advertisement.
(C) When an endorsement refers to benefits received under a viatical settlement, all pertinent information shall be retained for a period of five (5) years after its use.
(e) An advertisement shall not contain statistical information unless it accurately reflects recent and relevant facts. The source of all statistics used in an advertisement shall be identified.
(f) An advertisement shall not disparage insurers, viatical settlement providers, viatical settlement brokers, viatical settlement investment agents, insurance producers, policies, services or methods of marketing.
(g) The name of the person or entity authorized to negotiate viatical settlements shall be clearly identified in all advertisements about the authorized person or entity or its viatical settlements, products or services, and if any specific viatical settlement is advertised, the viatical settlement shall be identified either by form number or some other appropriate description. If an application is part of the advertisement, the name of the viatical settlement provider shall be shown on the application.
(h) An advertisement shall not use a trade name, group designation, name of the parent company of a person or entity authorized to negotiate viatical settlements, name of a particular division of said authorized person or entity, service mark, slogan, symbol or other device or reference without disclosing the name of said authorized person or entity, if the advertisement would have the capacity or tendency to mislead or deceive as to the true identity of the person or entity authorized to negotiate viatical settlements, or to create the impression that a company other than said authorized person or entity would have any responsibility for the financial obligation under a viatical settlement.
(i) An advertisement shall not use any combination of words, symbols or physical materials that by their content, phraseology, shape, color or other characteristics are so similar to a combination of words, symbols or physical materials used by a government program or agency or otherwise appear to be of such a nature that they tend to mislead prospective viators into believing that the solicitation is in some manner connected with a government program or agency.
(j) An advertisement may state that the person or entity authorized to negotiate viatical settlement contracts is licensed in Puerto Rico or in any other jurisdiction where the advertisement appears, provided, it does not exaggerate that fact or suggest or imply that competing authorized persons or entities may not be so licensed. The advertisement may ask the audience to consult the website of the authorized person or entity, or contact the department of insurance to find out if said jurisdiction requires licensing and, if so, whether the viatical settlement provider or broker is licensed.
(k) An advertisement shall not create the impression that the viatical settlement provider, its financial condition or status, the payment of its claims or the merits, desirability, or advisability of its viatical settlement are recommended or endorsed by any government entity.
(l) The name of the actual authorized person or entity shall be stated in all of its advertisements. An advertisement shall not use a trade name, any group designation, name of any affiliate or controlling entity of the authorized person or entity, service mark, slogan, symbol or other device in a manner that would have the capacity or tendency to mislead or deceive as to the true identity of the authorized person or entity or create the false impression that an affiliate or controlling entity would have any responsibility for the financial obligation of the authorized person or entity.
(m) An advertisement shall not directly or indirectly create the impression that any division or agency of the Commonwealth of Puerto Rico or of the United States Government endorses, approves or favors:
(1) Any person or entity authorized to negotiate viatical settlements or its business practices or methods of operation; or
(2) the merits, desirability or advisability of any viatical settlement; or
(3) any viatical settlement, or
(4) any life insurance policy or life insurance insurer.
(n) If the advertisement emphasizes the speed with which the viatication process will occur, the advertising must disclose the average time frame from completed application to the date of offer, and from acceptance of the offer to receipt of the funds by the viator.
(o) If the advertising emphasizes the dollar amounts available to viators, the advertising shall disclose the average purchase price as a percent of face value obtained by viators contracting with the authorized person or entity during the past six (6) months.
History —Ins. Code, added as § 43.100 on Dec. 28, 2005, No. 164, § 2; Jan. 19, 2006, No. 10, § 9; Aug. 4, 2006, No. 147, § 28.