CHAPTER 146d. MILITARY SALES PRACTICES Sec.
146d.1. Purpose.
146d.2. Applicability and scope.
146d.3. Definitions.
146d.4. Exemptions.
146d.5. Practices declared false, misleading, deceptive or unfair on a military installation.
146d.6. Practices declared false, misleading, deceptive or unfair regardless of location.
146d.7. Violation.
146d.8. Effective dateAuthority The provisions of this Chapter 146d issued under sections 206, 506, 1501 and 1502 of The Administrative Code of 1929 (71 P. S. § § 66, 186, 411 and 412); and the Unfair Insurance Practices Act (40 P. S. § § 1171.1—1171.14), unless otherwise noted.
Source The provisions of this Chapter 146d adopted September 25, 2009, effective January 1, 2010, 39 Pa.B. 5712, unless otherwise noted.
§ 146d.1. Purpose.
This chapter establishes standards to protect active duty service members of the United States Armed Forces from dishonest and predatory insurance sales practices by deeming and declaring certain identified practices to be false, misleading, deceptive or unfair.
§ 146d.2. Applicability and scope.
This chapter applies only to the solicitation or sale of any life insurance or annuity product by an insurer or insurance producer to an active duty service member of the United States Armed Forces.
§ 146d.3. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Active duty—(i) Full-time duty in the United States Armed Forces.
(ii) The term includes full-time duty or training in the National Guard or Reserve components of the United States Armed Forces if serving under published orders for a period of more than 31-calendar days.
Commissioner—The Insurance Commissioner of the Commonwealth.
Door to door—A solicitation or sales method whereby an insurance producer proceeds randomly or selectively from household to household without prior specific appointment.
General advertisement—An advertisement that promotes the concept of insurance, the insurer or the insurance producer.
Insurer—A life insurance company required to be licensed under section 202 of The Insurance Company Law of 1921 (40 P. S. § 382), or a fraternal benefit society required to be licensed under Article XXIV of The Insurance Company Law of 1921 (40 P. S. § § 991.2401—991.2466), known as the Fraternal Benefit Societies Code, to provide life insurance products, including annuities.
Insurance producer—A person who sells, solicits or negotiates contracts of insurance as defined in section 601-A of The Insurance Department Act of 1921 (40 P. S. § 310.1).
Life insurance—(i) Insurance coverage on human lives including benefits of endowment and annuities, and may include benefits in the event of death or dismemberment by accident and benefits for disability income.
(ii) The term includes individually issued annuities unless specifically excluded.
Military installation—A Federally-owned, leased, or operated base, reservation, post, camp, building, or other facility to which service members are assigned for duty, including barracks, transient housing and family quarters.
MyPay—A Defense Finance and Accounting Service web-based system that enables service members to process certain discretionary pay transactions or provide updates to personal information data elements without using paper forms.
Premium deposit fund—Amounts paid in and held for payments of future contractual obligations of policyholders or contractholders under an individual life insurance policy or an individual annuity contract.
Service member—A commissioned or warrant active duty officer or enlisted member of the United States Armed Forces.
Side fund—(i) A fund or reserve that is part of or otherwise attached to a life insurance policy, excluding individually issued annuities, by rider, endorsement or other mechanism which accumulates premium or deposits with interest or by other means.
(ii) The term does not include the following:
(A) The accumulated value, cash value or secondary guarantee provided by a universal life policy.
(B) A cash value provided by a whole life policy that is subject to standard nonforfeiture law for life insurance.
(C) A premium deposit fund that meets the following requirements:
(I) Contains only premiums paid in advance which accumulate at interest.
(II) Imposes no penalty for withdrawal.
(III) Does not permit funding beyond future required premiums.
(IV) Is not marketed or intended as an investment.
(V) Does not carry a commission, either paid or calculated.
Specific appointment—A prearranged, agreed upon appointment that is definite as to place and time.
United States Armed Forces—All components of the Army, Navy, Air Force, Marine Corps and Coast Guard.§ 146d.4. Exemptions.
(a) This chapter does not apply to solicitations or sales involving:
(1) Credit insurance.
(2) Group life insurance or group annuities when there is no in-person, face-to-face solicitation of individuals by an insurance producer or when the contract or certificate does not include a side fund.
(3) An application to the existing insurer that issued the existing policy or contract when one of the following applies:
(i) A contractual change or a conversion privilege is being exercised.
(ii) The existing policy or contract is being replaced by the same insurer under a program filed with and approved by the Commissioner.
(iii) A term conversion privilege is exercised among corporate affiliates.
(4) Individual stand-alone health policies, including disability income policies.
(5) Contracts offered by Servicemembers’ Group Life Insurance or Veterans’ Group Life Insurance, as authorized under 38 U.S.C. § § 1965—1980A (relating to servicemembers’ group life insurance).
(6) Life insurance contracts offered through or by a nonprofit military association, qualifying under section 501(c)(23) of the Internal Revenue Code of 1986 (26 U.S.C.A. § 501(c)(23)), and which are not underwritten by an insurer.
(7) Contracts used to fund:
(i) An employee pension or welfare benefit plan that is covered by the Employee Retirement and Income Security Act (ERISA) (29 U.S.C.A. § § 1001—1461).
(ii) A plan described by sections 401(a) or (k), 403(b) or 408(k) or (p) of the Internal Revenue Code of 1986 (26 U.S.C.A. § § 401(a) or (k), 403(b) or 408(k) or (p)), if established or maintained by an employer.
(iii) A government or church plan defined in section 414 of the Internal Revenue Code of 1986 (26 U.S.C.A. § 414) or a deferred compensation plan of a state or local government or tax exempt organization under section 457 of the Internal Revenue Code of 1986 (26 U.S.C.A. § 457).
(iv) A nonqualified deferred compensation arrangement established or maintained by an employer or plan sponsor.
(v) Settlements of or assumptions of liabilities associated with personal injury litigation or any dispute or claim resolution process.
(vi) Prearranged funeral contracts.
(b) Nothing in this chapter abrogates the ability of nonprofit organizations or other organizations, or both, to educate members of the United States Armed Forces in accordance with Department of Defense Instruction 1344.07—PERSONAL COMMERCIAL SOLICITATION ON DOD INSTALLATIONS or successor directive.
(c) For purposes of this chapter, general advertisements, direct mail and internet marketing do not constitute ‘‘solicitation.’’ Telephone marketing does not constitute ‘‘solicitation,’’ when the caller explicitly and conspicuously discloses that the product concerned is life insurance and makes no statements that evade a clear and unequivocal statement that life insurance is the subject matter of the solicitation. Nothing in this section exempts an insurer or insurance producer from this chapter in any in-person, face-to-face meeting established as a result of the ‘‘solicitation’’ exemptions identified in this section.
§ 146d.5. Practices declared false, misleading, deceptive or unfair on a military installation.
(a) The following acts or practices when committed on a military installation by an insurer or insurance producer with respect to the in-person, face-to-face solicitation of life insurance are deemed and declared to be false, misleading, deceptive or unfair:
(1) Knowingly soliciting the purchase of any life insurance product door to door or without first establishing a specific appointment for each meeting with the prospective purchaser.
(2) Soliciting service members in a group or mass audience or in a captive audience where attendance is not voluntary.
(3) Knowingly making appointments with or soliciting service members during their normally scheduled duty hours.
(4) Making appointments with or soliciting service members in barracks, day rooms, unit areas, transient personnel housing or other areas where the installation commander has prohibited solicitation.
(5) Soliciting the sale of life insurance without first obtaining permission from the installation commander or the commander’s designee.
(6) Posting unauthorized bulletins, notices or advertisements.
(7) Failing to present DD Form 2885, Personal Commercial Solicitation Evaluation, to service members solicited or encouraging service members solicited not to complete or submit a DD Form 2885.
(8) Knowingly accepting an application for life insurance or issuing a policy of life insurance on the life of an enlisted member of the United States Armed Forces without first obtaining for the insurer’s files a completed copy of any required form confirming that the applicant has received counseling or fulfilled any other similar requirement for the sale of life insurance established by regulations, directives or rules of the Department of Defense or any branch of the Armed Forces.
(b) The following acts or practices when committed on a military installation by an insurer or insurance producer constitute corrupt practices, improper influences or inducements and are deemed and declared to be false, misleading, deceptive or unfair:
(1) Directly or indirectly using an active duty service member or a civilian, nonappropriated fund, or special government employee of the Department of Defense as a representative or agent in any official or business capacity, with or without compensation, with respect to the solicitation or sale of life insurance to service members.
(2) Using an insurance producer to participate in any United States Armed Forces sponsored education or orientation program.
§ 146d.6. Practices declared false, misleading, deceptive or unfair regardless of location.
(a) The following acts or practices by an insurer or insurance producer constitute corrupt practices, improper influences or inducements and are deemed and declared to be false, misleading, deceptive or unfair:
(1) Submitting, processing or assisting in the submission or processing of any allotment form or similar device used by the United States Armed Forces to direct a service member’s pay to a third party for the purchase of life insurance, including using or assisting in using a service member’s ‘‘MyPay’’ account or other similar internet or electronic medium for this purpose. This paragraph does not prohibit assisting a service member by providing insurer or premium information necessary to complete any allotment form.
(2) Knowingly receiving funds from a service member for the payment of premium from a depository institution with which the service member has no formal banking relationship. For purposes of this paragraph, a formal banking relationship is established when the depository institution does all of the following:
(i) Provides the service member a deposit agreement and periodic statements and makes the disclosures required by the Truth in Savings Act (12 U.S.C.A. § § 4301—4313) and the regulations promulgated thereunder.
(ii) Permits the service member to make deposits and withdrawals unrelated to the payment or processing of insurance premiums.
(3) Employing a device or method or entering into an agreement whereby funds received from a service member by allotment for the payment of insurance premiums are identified on the service member’s Leave and Earnings Statement or equivalent or successor form as ‘‘Savings’’ or ‘‘Checking’’ and when the service member has no formal banking relationship as defined in paragraph (2).
(4) Entering into an agreement with a depository institution for the purpose of receiving funds from a service member whereby the depository institution, with or without compensation, agrees to accept direct deposits from a service member with whom it has no formal banking relationship.
(5) Directly or indirectly using an active duty service member or a civilian, nonappropriated fund, or special government employee of the Department of Defense, as a representative or agent in an official or unofficial capacity with or without compensation with respect to the solicitation or sale of life insurance to service members who are junior in rank or grade, or to the family members of the personnel.
(6) Offering or giving anything of value, directly or indirectly, to an active duty service member or a civilian, nonappropriated fund, or special government employee of the Department of Defense to procure assistance in encouraging, assisting or facilitating the solicitation or sale of life insurance to another service member.
(7) Knowingly offering or giving anything of value to a service member whom the insurer or insurance producer knows, or in the exercise of ordinary care should have known, has a pay grade of E-4 or below for a service menber’s attendance to an event where an application for life insurance is solicited.
(8) Advising a service member with a pay grade of E-4 or below to change his income tax withholding or state of legal residence for the sole purpose of increasing disposable income to purchase life insurance.
(b) The following acts or practices by an insurer or insurance producer lead to confusion regarding source, sponsorship, approval or affiliation and are declared to be false, misleading, deceptive or unfair:
(1) Making any representation, or using any device, title, descriptive name or identifier that has the tendency or capacity to confuse or mislead a service member into believing that the insurer, insurance producer or product offered is affiliated, connected or associated with, endorsed, sponsored, sanctioned or recommended by the United States Government, the United States Armed Forces, or any State or Federal agency or government entity.
(i) Examples of titles prohibited include ‘‘Battalion Insurance Counselor,’’ ‘‘Unit Insurance Advisor,’’ ‘‘Servicemen’s Group Life Insurance Conversion Consultant’’ or ‘‘Veteran’s Benefits Counselor.’’
(ii) Notwithstanding the prohibitions of this paragraph, a person may use a professional designation awarded after the successful completion of a course of instruction in the business of insurance by an accredited institution of higher learning. Examples include ‘‘Chartered Life Underwriter,’’ ‘‘Chartered Financial Consultant,’’ ‘‘Certified Financial Planner,’’ ‘‘Master of Science In Financial Services’’ or ‘‘Master of Science In Financial Planning.’’
(2) Soliciting the purchase of a life insurance product through the use of or in conjunction with a third-party organization that promotes the welfare of or assists members of the United States Armed Forces in a manner that has the tendency or capacity to confuse or mislead a service member into believing that either the insurer, insurance producer or insurance product is affiliated, connected or associated with, endorsed, sponsored, sanctioned or recommended by the United States Government, the United States Armed Forces or any State or Federal agency or governmental entity.
(c) The following acts or practices by an insurer or insurance producer lead to confusion regarding premiums, costs or investment returns and are declared to be false, misleading, deceptive or unfair:
(1) Using or describing the credited interest rate on a life insurance policy in a manner that implies that the credited interest rate is a net return on premium paid.
(2) Excluding individually issued annuities, misrepresenting the mortality costs of a life insurance product, including stating or implying that the product ‘‘costs nothing’’ or is ‘‘free.’’
(d) The following acts or practices by an insurer or insurance producer regarding Servicemembers Group Life Insurance or Veterans’ Group Life Insurance are declared to be false, misleading, deceptive or unfair:
(1) Making a representation regarding the availability, suitability, amount, cost, exclusions or limitations to coverage provided to a service member or dependents by service members’ group life insurance or veterans’ group life insurance, which is false, misleading or deceptive.
(2) Making any representation regarding conversion requirements, including the costs of coverage, or exclusions or limitations to coverage of Servicemembers’ Group Life Insurance or Veterans’ Group Life Insurance to private insurers which is false, misleading or deceptive.
(3) Suggesting, recommending or encouraging a service member to cancel or terminate a Servicemembers’ Group Life Insurance policy or issuing a life insurance policy which replaces an existing Servicemembers’ Group Life Insurance policy unless the replacement takes effect upon or after the service member’s separation from the United States Armed Forces.
(e) The following acts or practices by an insurer or insurance producer, or both, regarding disclosure are deemed and declared to be false, misleading, deceptive or unfair:
(1) Deploying, using or contracting for any lead generating materials designed exclusively for use with service members that do not clearly and conspicuously disclose that the recipient will be contacted by an insurance producer, if that is the case, for the purpose of soliciting the purchase of life insurance.
(2) Failing to disclose that a solicitation for the sale of life insurance will be made when establishing a specific appointment for an in-person, face-to-face meeting with a prospective purchaser.
(3) Excluding individually issued annuities, failing to clearly and conspicuously disclose the fact that the product being sold is life insurance.
(4) Failing to make the written disclosures required under section 10 of the Military Personnel Financial Services Protection Act (10 U.S.C. § 992 nt), at the time of sale or offer to an individual who the insurer or insurance producer knows, or in the exercise of ordinary care should have known, is a service member.
(5) Excluding individually issued annuities, when the sale is conducted in-person face-to-face with an individual whom the insurer or insurance producer knows, or in the exercise of ordinary care should have known, to be a service member, failing to provide the applicant at the time the application is taken with the following:
(i) An explanation of any free look period with instructions on how to cancel if a policy is issued.
(ii) Either a copy of the application or a written disclosure that clearly and concisely sets out the type of life insurance, the death benefit applied for and its expected first year cost. A basic illustration that meets the requirements of sections 407-A and 408-A, of The Insurance Company Law of 1921 (40 P. S. § § 625-7 and 625-8), regarding illustrations and life insurance illustrations, shall be deemed sufficient to meet this requirement for a written disclosure.
(f) The following acts or practices by an insurer or insurance producer with respect to the sale of life insurance products, excluding individually issued annuities, are deemed and declared to be false, misleading, deceptive or unfair:
(1) Recommending the purchase of a life insurance product which includes a side fund to a service member in pay grades E-4 and below unless the insurer has reasonable grounds for believing that the life insurance death benefit, standing alone, is suitable.
(2) Offering for sale or selling any life insurance contract which includes a side fund unless all the following conditions are met:
(i) Interest credited accrues from the date of deposit to the date of withdrawal and permits withdrawals without limit or penalty.
(ii) The applicant has been provided with a schedule of effective rates of return based upon cash flows of the combined product. For this disclosure, the effective rate of return will consider all premiums and cash contributions made by the policyholder and all cash accumulations and cash surrender values available to the policyholder in addition to life insurance coverage. This schedule will be provided for at least each policy year from 1 to 10 and for every fifth policy year thereafter ending at age 100, policy maturity or final expiration.
(iii) The contract does not, by default, divert or transfer funds accumulated in the side fund to pay, reduce or offset any premiums due.
(3) Offering for sale or selling any life insurance contract which after considering all policy benefits, including endowment, return of premium or persistency, does not comply with standard nonforfeiture law for life insurance.
(g) The following acts or practices by an insurer or insurance producer with respect to the sale of life insurance products are deemed and declared to be false, misleading, deceptive or unfair:
(1) Offering for sale or selling a life insurance product that includes a side fund to a service member in pay grades E-4 and below who is currently enrolled in Service Members’ Group Life Insurance. This practice is presumed unfair unless the following conditions are met:
(i) The insurer conducts a needs assessment which includes consideration of the risks associated with premature death, the financial obligations and immediate and future cash needs of the applicant’s estate, or survivors or dependents, or both.
(ii) The insurer demonstrates that the applicant’s service members group life insurance death benefit, together with other military survivor benefits, savings and investments, survivor income, and other life insurance are insufficient to meet the applicant’s insurable needs for life insurance. For purposes of this subparagraph, ‘‘other military survivor benefits’’ include the Death Gratuity, Funeral Reimbursement, Transition Assistance, Survivor and Dependents’ Educational Assistance, Dependency and Indemnity Compensation, TRICARE Healthcare Benefits, Survivor Housing Benefits and Allowances, Federal Income Tax Forgiveness and Social Security Survivor Benefits.
(2) Selling a life insurance product to an individual whom the insurer or insurance producer knows, or in the exercise of ordinary care should have known, to be a service member that excludes coverage if the insured’s death is related to war, declared or undeclared, or an act related to military service except for an accidental death coverage, for example, double indemnity, which may be excluded.
§ 146d.7. Violation.
Violations of this chapter are deemed and defined by the Commissioner to be an unfair method of competition and an unfair or deceptive act or practice and shall be subject to applicable penalties or remedies contained in the Unfair Insurance Practices Act (40 P. S. § § 1171.1—1171.15).
§ 146d.8. Effective date.
This chapter will become effective January 1, 2010, and apply to acts or practices committed on or after January 1, 2010.
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