§ 305.020. Use of senior specific certifications and professional designations.
(a) General rule. The use of a senior specific certification or designation by a person in connection with the offer, sale or purchase of securities, or the provision of advice as to the value of or the advisability of investing in, purchasing or selling securities, either directly or indirectly or through publications or writings, or by issuing or promulgating analyses or reports relating to securities, that indicates or implies that the user has special certification or training in advising or servicing senior citizens or retirees, in a way as to mislead any person is a dishonest and unethical practice in the securities business within the meaning of section 305(a)(ix) of the act (70 P.S. § 1-305(a)(ix)).
(b) Prohibitions. The prohibited use of senior specific certification or professional designation includes the use of:
(1) A certification or professional designation by a person who has not actually earned or is otherwise ineligible to use the certification or designation.
(2) A nonexistent or self-conferred certification or professional designation.
(3) A certification or professional designation that indicates or implies a level of occupational qualifications obtained through education, training or experience that the person using the certification or professional designation does not have.
(4) A certification or professional designation that was obtained from a designating or certifying organization to which any of the following applies:
(i) Is primarily engaged in the business of instruction in sales or marketing, or both.
(ii) Does not have reasonable standards or procedures for assuring the competency of its designees or certificants.
(iii) Does not have reasonable standards or procedures for monitoring and disciplining its designees or certificants for improper or unethical conduct.
(iv) Does not have reasonable continuing education requirements for its designees or certificants to maintain the designation or certificate.
(c) Rebuttable presumption. There is a rebuttable presumption that a designating or certifying organization is not disqualified solely for purposes of subsection (b)(4) when the organization has been accredited by any of the following:
(1) The American National Standards Institute.
(2) The National Commission for Certifying Agencies.
(3) An organization that is on the United States Department of Education’s “Accrediting Agencies Recognized for Title IV Purposes” list and the designation or credential issued therefrom does not primarily apply to sales or marketing, or both.
(d) Factors to be considered. In determining whether a combination of words, or an acronym standing for a combination of words, constitutes a certification or professional designation indicating or implying that a person has special certification or training in advising or servicing senior citizens or retirees, the Department will consider the following factors:
(1) Use of one or more words such as “senior,” “retirement,” “elder” or like words, combined with one or more words such as “certified,” “registered,” “chartered,” “adviser,” “specialist,” “consultant,” “planner” or like words, in the name of the certification or professional designation.
(2) How those words are combined.
(e) Exception. For purposes of this section, a certification or professional designation does not include a job title within an organization that is licensed or registered by a state or Federal financial services regulatory agency, including an agency that regulates broker-dealers, investment advisers or investment companies as defined under the Investment Company Act of 1940 (15 U.S.C.A. § § 80a-1—80a-64), when that job title does either of the following:
(1) Indicates seniority or standing within the organization.
(2) Specifies an individual’s area of specialization within the organization.
(f) No limitation on Department enforcement. This section does not limit the Department’s authority to enforce existing provisions of law.
Authority The provisions of this § 305.020 issued under section 202.C of the Department of Banking and Securities Code (71 P.S. § 733-202.C); section 609(a) of the Pennsylvania Securities Act of 1972 (70 P.S. § 1-609(a)); and section 9(b) of the Takeover Disclosure Law (70 P.S. § 79(b)).
Source The provisions of this § 305.020 adopted January 12, 2018, effective January 13, 2018, 48 Pa.B. 389.
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