We offer business ATM and debit cards. When describing some features about our business deposit products, our marketing folks would like to say "Free Instant Cash Card." They want to say free because the card itself is free to have and if they use it our bank locations and any Wells Fargo location, there is no transaction fee. However, if they use it at a non-proprietary ATM, our bank charges a $1 fee, plus any fee the ATM owner charges.

I believe it is mis-leading to say free. In the mind of most reasonable business people (keep in mind this is a commercial account so I can't fall back on TISA) no one ever has paid to have an ATM card, only to use it. So if I see "free", I'm thinking no fees to use it, not I can get the card for free.

The marketing people are thinking more along the lines of the customer has to do something to be assessed the fee - i.e. use the card at a non-proprietary ATM - it is free if you use it at our designated locations. It only costs if you use it outside the network...kind of like, a checking account can be deemed free even though you can be assessed an overdraft charge - BUT only if you overdraw your account.

I of course have no specific regulatory citation to quote other than to say it could be deemed deception or misleading.

Any thoughts?

UDAP (unfair or deceptive acts and practices) is getting a lot of press lately. Congress is even considering a bill that would allow the banking agencies to start issuing UDAP regulations (that's been the province of the the FTC).

Your state might also have UDAP concerns about leading a small businessperson down the garden path, even if it's about something as relatively trivial as ATM fees.

I believe in honesty and candor in ads. I'd suggest footnoting the "free" in this ad with a statement that the card can be used at no charge [where], and for $1 at all other ATM locations (plus any ATM owner fees).

This is along the same lines as saying "Free overdraft protection" meaning enrollment is free, but each NSF costs you $35.

I can see your ad reading "Free Instant Cash Card - no fees when used on the XYZ ATM Network" but to have less is misleading.

And while Marketing wants to get customers in the bank, they need to understand that the CSRs are the ones who'll feel the brunt of it when a potential customer finds out you're not rebating ALL the fees. That will leave a bad taste in their mouths and do more damage in the long run.

That is how I'd explain it. (In addition to John's UDAP comments.)

We currently advertise our ATMs as free but in our marketing materials, we state that "foreign bank fee may apply." But in reference to our bank, it does not charge the customer if they use another institutions ATM. And then that institution is required to disclose prior to completing the transaction if they are going to charge the customer a fee.