NAILBA Perspectives Winter 2019 | Page 30

legislation and regulation Will Disclosure Bring Closure C MARK VALENTINI Mark Valentini, MPP, is NAILBA’s former Director of Government Affairs and currently works as a lobbyist for a non- profit organization in Washington, D.C. Mark has a Masters in Public Policy with a Concentration in Governance Systems and Policy Management from George Mason University and has worked in a variety of legislative roles during his career. 30 perspectives WINTER 2019 ompensation has been at the center of the argument supporting more stringent standards of care when it comes to selling financial products and providing recommendations. Regulators want to ensure when a customer is provided with options for a product like an annuity, the producer is not going to push a less suitable product on a customer simply because it will pay that producer a higher commission. New York State pushed for a commission disclosure rule back in 2010 on fixed products that many in the industry opposed, NAILBA included. In the end, Regulation 194 was passed, and producers were required to include a few extra pages accompanying product illustrations outlining the expected compensation the producer would receive, the agent’s role in the sale, the variability of the compensation, and the source of compensation. The disclosure also provides the option for the customer to receive further details about the producer’s compensation, having the choice of getting this information either verbally or in writing. At the time Regulation 194 was being promulgated (around 2010), NAILBA’s opposition to the proposal was premised on the argument that disclosing compensation risks placing undue focus on how an agent gets paid as opposed to which product is more suitable for a customer. Specifically, NAILBA and its industry partners were concerned that compensation disclosure would incentivize producers to recommend lower-commission products, even if equally suitable or better suited products paid a higher commission, in order to avoid even the appearance of a conflict of interest. It was a slippery slope to further restrictions on commission- based sales. The Regulation Best Interest (RBI) rule currently being considered by the Securities and Exchange Commission (SEC) contemplates a similar disclosure component for SEC-regulated products. The consumer groups that support more stringent standards of care believe RBI is watered- down precisely because they’re afraid compensation disclosure requirements would be as stringent as the rule gets. If compensation disclosure puts this issue to rest once and for all, that would be a win for the industry considering there are elements in this debate that view the simple act of being paid commission as a conflict of interest. However, New York’s Regulation 187 that was passed last year imposing a best interest standard not only on the sales of annuities but also life insurance is proof that compensation disclosure does not put the standards of care issue to rest, regardless of the type of product being sold. If disclosure would resolve the debate on what’s in a customer’s best interest in New York it would have ended with Regulation 194, but it didn’t. A slippery slope indeed. In addition to New York, the “best interest” issue has become a political football in large markets such as California and New Jersey. Newly-elected California Governor Gavin Newsom could tout his state’s attempts at more stringent sales standards as evidence of his tough stance on the financial services industry as part of a potential presidential