NAFCU Compliance Blog

Eligibility Information and Member Lists

Is a credit union’s member list considered eligibility information under the affiliate marketing rule? This question has been asked a few times, and it seems we have an answer.

I recently attended the American Bar Association (ABA) conference in New York and when I wasn’t attending the credit union meetings, I found a couple of CLE programs, one of which I found rather useful. It was entitled Can Privacy and Marketing Coexist? Don’t Ask, Don’t Sell. The program entailed a panel of 4 attorneys – two from law firms, one from the OCC, and one from the FTC – who discussed the privacy-oriented rules, including affiliate marketing, and their interplay with marketing efforts. I’m not going to go through the entire two-hour program here but I thought I’d highlight the eligibility information discussion since the question has been asked of the compliance team a few times.

Here goes the analysis:

The rule defines “eligibility information” as any information the communication of which would be a consumer report if exclusions from the definition of “consumer report” in section 603(d)(2)(A) of the Fair Credit Reporting Act did not apply. So the rule applies to transaction and experience information as well as consumer report information.

However, it should not entail contact information alone. Pure contact information does not contain any consumer report information. Now, if one could glean consumer report information from the contact list, then it would eligibility information. For instance, a list of your members that have account balances over a certain amount would be eligibility information. But, a list of all of your members would not be (although it is non-public personal information under the Privacy rule).

-Sarah Loats
Regulatory Compliance Counsel

Email Signatures; Das Photos

Many credit unions (and NAFCU for that matter) use the email signature area to market products and services.  But here's a thought: how many have reviewed their email signature for compliance with Regulation Z, Truth in Savings, and NCUA's advertising requirements? 

It seems to me that an email signature that promotes a savings or loan product would qualify as an advertisement.  Regulation Z contains no exceptions whatsoever for its advertising requirements.  TIS has some exceptions for certain advertisements, as does NCUA's advertising rules.  I haven't gone through the entire analysis in my head yet, but I think it is something worth thinking about.  And how many of you compliance gurus review signature lines of a marketing nature before they go final?

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OK, you wanted wedding photos. Here they are! 

Have a great weekend, everyone!

CAN-SPAM

The FTC recently approved four new rule provisions under the CAN-SPAM Act of 2003.  (And can any of you remember what CAN-SPAM stands for?  I didn't think so. It is the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003.  There you have it.)

You can access the FTC press release about the changes here.  That page has a link to the new rules.  The changes do not appear to be that drastic.  Here's a broad overview:

(1) an e-mail recipient cannot be required to pay a fee, provide information other than his or her e-mail address and opt-out preferences, or take any steps other than sending a reply e-mail message or visiting a single Internet Web page to opt out of receiving future e-mail from a sender

(2) the definition of “sender” was modified to make it easier to determine which of multiple parties advertising in a single e-mail message is responsible for complying with the Act’s opt-out requirements

(3) a “sender” of commercial e-mail can include an accurately-registered post office box or private mailbox established under United States Postal Service regulations to satisfy the Act’s requirement that a commercial e-mail display a “valid physical postal address”

(4) a definition of the term “person” was added to clarify that CAN-SPAM’s obligations are not limited to natural persons.

Here is a link to NCUA's Regulatory Alert on CAN-SPAM requirements.  And here's a link to NAFCU's Regulatory Alert on the implementation of the CAN-SPAM requirements. (NAFCU Member Log In Needed.)  And remember this about CAN-SPAM: messages categorized as “transactional or relationship” are subject only to the Act’s prohibition on false or misleading transmission information.