Sec. 222.21 Affiliate marketing opt-out and
exceptions.
(a) Initial notice and opt-out
requirement. (1) In general. You may not
use eligibility information about a
consumer that you receive from an
affiliate to make a solicitation for
marketing purposes to the consumer,
unless—
(i) It is clearly and conspicuously
disclosed to the consumer in writing or,
if the consumer agrees, electronically, in
a concise notice that you may use
eligibility information about that
consumer received from an affiliate to
make solicitations for marketing
purposes to the consumer;
(ii) The consumer is provided a
reasonable opportunity and a reasonable
and simple method to ‘‘opt out,’’ or
prohibit you from using eligibility
information to make solicitations for
marketing purposes to the consumer;
and
(iii) The consumer has not opted out.
(2) Example. A consumer has a
homeowner’s insurance policy with an
insurance company. The insurance
company furnishes eligibility
information about the consumer to its
affiliated depository institution. Based
on that eligibility information, the
depository institution wants to make a
solicitation to the consumer about its
home equity loan products. The
depository institution does not have a
pre-existing business relationship with
the consumer and none of the other
exceptions apply. The depository
institution is prohibited from using
eligibility information received from its
insurance affiliate to make solicitations
to the consumer about its home equity
loan products unless the consumer is
given a notice and opportunity to opt
out and the consumer does not opt out.
(3) Affiliates who may provide the
notice. The notice required by this
paragraph must be provided:
(i) By an affiliate that has or has
previously had a pre-existing business
relationship with the consumer; or
(ii) As part of a joint notice from two
or more members of an affiliated group
of companies, provided that at least one
of the affiliates on the joint notice has
or has previously had a pre-existing
business relationship with the
consumer.
(b) Making solicitations. (1) In
general. For purposes of this subpart,
you make a solicitation for marketing
purposes if—
(i) You receive eligibility information
from an affiliate;
(ii) You use that eligibility
information to do one or more of the
following:
(A) Identify the consumer or type of
consumer to receive a solicitation;
(B) Establish criteria used to select the
consumer to receive a solicitation; or
(C) Decide which of your products or
services to market to the consumer or
tailor your solicitation to that consumer;
and
(iii) As a result of your use of the
eligibility information, the consumer is
provided a solicitation.
(2) Receiving eligibility information
from an affiliate, including through a
common database. You may receive
eligibility information from an affiliate
in various ways, including when the
affiliate places that information into a
common database that you may access.
(3) Receipt or use of eligibility
information by your service provider.
Except as provided in paragraph (b)(5)
of this section, you receive or use an
affiliate’s eligibility information if a
service provider acting on your behalf
(whether an affiliate or a nonaffiliated
third party) receives or uses that
information in the manner described in
paragraphs (b)(1)(i) or (b)(1)(ii) of this
section. All relevant facts and
circumstances will determine whether a
person is acting as your service provider
when it receives or uses an affiliate’s
eligibility information in connection
with marketing your products and
services.
(4) Use by an affiliate of its own
eligibility information. Unless you have
used eligibility information that you
receive from an affiliate in the manner
described in paragraph (b)(1)(ii) of this
section, you do not make a solicitation
subject to this subpart if your affiliate:
(i) Uses its own eligibility information
that it obtained in connection with a
pre-existing business relationship it has
or had with the consumer to market
your products or services to the
consumer; or
(ii) Directs its service provider to use
the affiliate’s own eligibility information
that it obtained in connection with a
pre-existing business relationship it has
or had with the consumer to market
your products or services to the
consumer, and you do not communicate
directly with the service provider
regarding that use.
(5) Use of eligibility information by a
service provider. (i) In general. You do
not make a solicitation subject to
Subpart C of this part if a service
provider (including an affiliated or
third-party service provider that
maintains or accesses a common
database that you may access) receives
eligibility information from your
affiliate that your affiliate obtained in
connection with a pre-existing business
relationship it has or had with the
consumer and uses that eligibility
information to market your products or
services to the consumer, so long as—
(A) Your affiliate controls access to
and use of its eligibility information by
the service provider (including the right
to establish the specific terms and
conditions under which the service
provider may use such information to
market your products or services);
(B) Your affiliate establishes specific
terms and conditions under which the
service provider may access and use the
affiliate’s eligibility information to
market your products and services (or
those of affiliates generally) to the
consumer, such as the identity of the
affiliated companies whose products or
services may be marketed to the
consumer by the service provider, the
types of products or services of affiliated
companies that may be marketed, and
the number of times the consumer may
receive marketing materials, and
periodically evaluates the service
provider’s compliance with those terms
and conditions;
(C) Your affiliate requires the service
provider to implement reasonable
policies and procedures designed to
ensure that the service provider uses the
affiliate’s eligibility information in
accordance with the terms and
conditions established by the affiliate
relating to the marketing of your
products or services;
(D) Your affiliate is identified on or
with the marketing materials provided
to the consumer; and
(E) You do not directly use your
affiliate’s eligibility information in the
manner described in paragraph (b)(1)(ii)
of this section.
(ii) Writing requirements. (A) The
requirements of paragraphs (b)(5)(i)(A)
and (C) of this section must be set forth
in a written agreement between your
affiliate and the service provider; and
(B) The specific terms and conditions
established by your affiliate as provided
in paragraph (b)(5)(i)(B) of this section
must be set forth in writing.
(6) Examples of making solicitations.
(i) A consumer has a deposit account
with a depository institution, which is
affiliated with an insurance company.
The insurance company receives
eligibility information about the
consumer from the depository
institution. The insurance company
uses that eligibility information to
identify the consumer to receive a
solicitation about insurance products,
and, as a result, the insurance company
provides a solicitation to the consumer
about its insurance products. Pursuant
to paragraph (b)(1) of this section, the
insurance company has made a
solicitation to the consumer.
(ii) The same facts as in the example
in paragraph (b)(6)(i) of this section,
except that after using the eligibility
information to identify the consumer to
receive a solicitation about insurance
products, the insurance company asks
the depository institution to send the
solicitation to the consumer and the
depository institution does so. Pursuant
to paragraph (b)(1) of this section, the
insurance company has made a
solicitation to the consumer because it
used eligibility information about the
consumer that it received from an
affiliate to identify the consumer to
receive a solicitation about its products
or services, and, as a result, a
solicitation was provided to the
consumer about the insurance
company’s products.
(iii) The same facts as in the example
in paragraph (b)(6)(i) of this section,
except that eligibility information about
consumers that have deposit accounts
with the depository institution is placed
into a common database that all
members of the affiliated group of
companies may independently access
and use. Without using the depository
institution’s eligibility information, the
insurance company develops selection
criteria and provides those criteria,
marketing materials, and related
instructions to the depository
institution. The depository institution
reviews eligibility information about its
own consumers using the selection
criteria provided by the insurance
company to determine which
consumers should receive the insurance
company’s marketing materials and
sends marketing materials about the
insurance company’s products to those
consumers. Even though the insurance
company has received eligibility
information through the common
database as provided in paragraph (b)(2)
of this section, it did not use that
information to identify consumers or
establish selection criteria; instead, the
depository institution used its own
eligibility information. Therefore,
pursuant to paragraph (b)(4)(i) of this
section, the insurance company has not
made a solicitation to the consumer.
(iv) The same facts as in the example
in paragraph (b)(6)(iii) of this section,
except that the depository institution
provides the insurance company’s
criteria to the depository institution’s
service provider and directs the service
provider to use the depository
institution’s eligibility information to
identify depository institution
consumers who meet the criteria and to
send the insurance company’s
marketing materials to those consumers.
The insurance company does not
communicate directly with the service
provider regarding the use of the
depository institution’s information to
market its products to the depository
institution’s consumers. Pursuant to
paragraph (b)(4)(ii) of this section, the
insurance company has not made a
solicitation to the consumer.
(v) An affiliated group of companies
includes a depository institution, an
insurance company, and a service
provider. Each affiliate in the group
places information about its consumers
into a common database. The service
provider has access to all information in
the common database. The depository
institution controls access to and use of
its eligibility information by the service
provider. This control is set forth in a
written agreement between the
depository institution and the service
provider. The written agreement also
requires the service provider to establish
reasonable policies and procedures
designed to ensure that the service
provider uses the depository
institution’s eligibility information in
accordance with specific terms and
conditions established by the depository
institution relating to the marketing of
the products and services of all
affiliates, including the insurance
company. In a separate written
communication, the depository
institution specifies the terms and
conditions under which the service
provider may use the depository
institution’s eligibility information to
market the insurance company’s
products and services to the depository
institution’s consumers. The specific
terms and conditions are: A list of
affiliated companies (including the
insurance company) whose products or
services may be marketed to the
depository institution’s consumers by
the service provider; the specific
products or types of products that may
be marketed to the depository
institution’s consumers by the service
provider; the categories of eligibility
information that may be used by the
service provider in marketing products
or services to the depository
institution’s consumers; the types or
categories of the depository institution’s
consumers to whom the service
provider may market products or
services of depository institution
affiliates; the number and/or types of
marketing communications that the
service provider may send to the
depository institution’s consumers; and
the length of time during which the
service provider may market the
products or services of the depository
institution’s affiliates to its consumers.
The depository institution periodically
evaluates the service provider’s
compliance with these terms and
conditions. The insurance company
asks the service provider to market
insurance products to certain consumers
who have deposit accounts with the
depository institution. Without using
the depository institution’s eligibility
information, the insurance company
develops selection criteria and provides
those criteria, marketing materials, and
related instructions to the service
provider. The service provider uses the
depository institution’s eligibility
information from the common database
to identify the depository institution’s
consumers to whom insurance products
will be marketed. When the insurance
company’s marketing materials are
provided to the identified consumers,
the name of the depository institution is
displayed on the insurance marketing
materials, an introductory letter that
accompanies the marketing materials,
an account statement that accompanies
the marketing materials, or the envelope
containing the marketing materials. The
requirements of paragraph (b)(5) of this
section have been satisfied, and the
insurance company has not made a
solicitation to the consumer.
(vi) The same facts as in the example
in paragraph (b)(6)(v) of this section,
except that the terms and conditions
permit the service provider to use the
depository institution’s eligibility
information to market the products and
services of other affiliates to the
depository institution’s consumers
whenever the service provider deems it
appropriate to do so. The service
provider uses the depository
institution’s eligibility information in
accordance with the discretion afforded
to it by the terms and conditions.
Because the terms and conditions are
not specific, the requirements of
paragraph (b)(5) of this section have not
been satisfied.
(c) Exceptions. The provisions of this
subpart do not apply to you if you use
eligibility information that you receive
from an affiliate:
(1) To make a solicitation for
marketing purposes to a consumer with
whom you have a pre-existing business
relationship;
(2) To facilitate communications to an
individual for whose benefit you
provide employee benefit or other
services pursuant to a contract with an
employer related to and arising out of
the current employment relationship or
status of the individual as a participant
or beneficiary of an employee benefit
plan;
(3) To perform services on behalf of
an affiliate, except that this
subparagraph shall not be construed as
permitting you to send solicitations on
behalf of an affiliate if the affiliate
would not be permitted to send the
solicitation as a result of the election of
the consumer to opt out under this
subpart;
(4) In response to a communication
about your products or services initiated
by the consumer;
(5) In response to an authorization or
request by the consumer to receive
solicitations; or
(6) If your compliance with this
subpart would prevent you from
complying with any provision of State
insurance laws pertaining to unfair
discrimination in any State in which
you are lawfully doing business.
(d) Examples of exceptions. (1)
Example of the pre-existing business
relationship exception. A consumer has
a deposit account with a depository
institution. The consumer also has a
relationship with the depository
institution’s securities affiliate for
management of the consumer’s
securities portfolio. The depository
institution receives eligibility
information about the consumer from its
securities affiliate and uses that
information to make a solicitation to the
consumer about the depository
institution’s wealth management
services. The depository institution may
make this solicitation even if the
consumer has not been given a notice
and opportunity to opt out because the
depository institution has a pre-existing
business relationship with the
consumer.
(2) Examples of service provider
exception. (i) A consumer has an
insurance policy issued by an insurance
company. The insurance company
furnishes eligibility information about
the consumer to its affiliated depository
institution. Based on that eligibility
information, the depository institution
wants to make a solicitation to the
consumer about its deposit products.
The depository institution does not have
a pre-existing business relationship with
the consumer and none of the other
exceptions in paragraph (c) of this
section apply. The consumer has been
given an opt-out notice and has elected
to opt out of receiving such
solicitations. The depository institution
asks a service provider to send the
solicitation to the consumer on its
behalf. The service provider may not
send the solicitation on behalf of the
depository institution because, as a
result of the consumer’s opt-out
election, the depository institution is
not permitted to make the solicitation.
(ii) The same facts as in paragraph
(d)(2)(i) of this section, except the
consumer has been given an opt-out
notice, but has not elected to opt out.
The depository institution asks a service
provider to send the solicitation to the
consumer on its behalf. The service
provider may send the solicitation on
behalf of the depository institution
because, as a result of the consumer’s
not opting out, the depository
institution is permitted to make the
solicitation.
(3) Examples of consumer-initiated
communications. (i) A consumer who
has a deposit account with a depository
institution initiates a communication
with the depository institution’s credit
card affiliate to request information
about a credit card. The credit card
affiliate may use eligibility information
about the consumer it obtains from the
depository institution or any other
affiliate to make solicitations regarding
credit card products in response to the
consumer-initiated communication.
(ii) A consumer who has a deposit
account with a depository institution
contacts the institution to request
information about how to save and
invest for a child’s college education
without specifying the type of product
in which the consumer may be
interested. Information about a range of
different products or services offered by
the depository institution and one or
more affiliates of the institution may be
responsive to that communication. Such
products or services may include the
following: Mutual funds offered by the
institution’s mutual fund affiliate;
section 529 plans offered by the
institution, its mutual fund affiliate, or
another securities affiliate; or trust
services offered by a different financial
institution in the affiliated group. Any
affiliate offering investment products or
services that would be responsive to the
consumer’s request for information
about saving and investing for a child’s
college education may use eligibility
information to make solicitations to the
consumer in response to this
communication.
(iii) A credit card issuer makes a
marketing call to the consumer without
using eligibility information received
from an affiliate. The issuer leaves a
voice-mail message that invites the
consumer to call a toll-free number to
apply for the issuer’s credit card. If the
consumer calls the toll-free number to
inquire about the credit card, the call is
a consumer-initiated communication
about a product or service and the credit
card issuer may now use eligibility
information it receives from its affiliates
to make solicitations to the consumer.
(iv) A consumer calls a depository
institution to ask about retail locations
and hours, but does not request
information about products or services.
The institution may not use eligibility
information it receives from an affiliate
to make solicitations to the consumer
about its products or services because
the consumer-initiated communication
does not relate to the depository
institution’s products or services. Thus,
the use of eligibility information
received from an affiliate would not be
responsive to the communication and
the exception does not apply.
(v) A consumer calls a depository
institution to ask about retail locations
and hours. The customer service
representative asks the consumer if
there is a particular product or service
about which the consumer is seeking
information. The consumer responds
that the consumer wants to stop in and
find out about certificates of deposit.
The customer service representative
offers to provide that information by
telephone and mail additional
information and application materials to
the consumer. The consumer agrees and
provides or confirms contact
information for receipt of the materials
to be mailed. The depository institution
may use eligibility information it
receives from an affiliate to make
solicitations to the consumer about
certificates of deposit because such
solicitations would respond to the
consumer-initiated communication
about products or services.
(4) Examples of consumer
authorization or request for
solicitations. (i) A consumer who
obtains a mortgage from a mortgage
lender authorizes or requests
information about homeowner’s
insurance offered by the mortgage
lender’s insurance affiliate. Such
authorization or request, whether given
to the mortgage lender or to the
insurance affiliate, would permit the
insurance affiliate to use eligibility
information about the consumer it
obtains from the mortgage lender or any
other affiliate to make solicitations to
the consumer about homeowner’s
insurance.
(ii) A consumer completes an online
application to apply for a credit card
from a credit card issuer. The issuer’s
online application contains a blank
check box that the consumer may check
to authorize or request information from
the credit card issuer’s affiliates. The
consumer checks the box. The consumer
has authorized or requested solicitations
from the card issuer’s affiliates.
(iii) A consumer completes an online
application to apply for a credit card
from a credit card issuer. The issuer’s
online application contains a preselected
check box indicating that the
consumer authorizes or requests
information from the issuer’s affiliates.
The consumer does not deselect the
check box. The consumer has not
authorized or requested solicitations
from the card issuer’s affiliates.
(iv) The terms and conditions of a
credit card account agreement contain
preprinted boilerplate language stating
that by applying to open an account the
consumer authorizes or requests to
receive solicitations from the credit card
issuer’s affiliates. The consumer has not
authorized or requested solicitations
from the card issuer’s affiliates.
(e) Relation to affiliate-sharing notice
and opt-out. Nothing in this subpart
limits the responsibility of a person to
comply with the notice and opt-out
provisions of section 603(d)(2)(A)(iii) of
the Act where applicable.
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