NFA Interpretive Notice Re: Deceptive Advertising II

This interpretive notice comes on the heels of another notice issued by the NFA also dealing with deceptive advertisements (see NFA Interpretive Notice on Deceptive Advertising).  This notice goes further than the first notice and defines more practices which the NFA believes are deceptive.  These practices include: certain marketing practices which discuss leverage and providing historical pricing information on products which the advisory is not soliciting.   This notice makes clear that it will be wise to have your attorney review all marketing material before it goes out to potential investors.

With regard to current NFA members who engage in trading or advising on off-exchange forex transactions, this may apply if rules recently proposed by the NFA are approval by the CFTC and if the NFA Member utilizes promotional material which references hypothetical forex performance results.  (See NFA Proposes Additions to Forex Compliance Rules.)  With regard to the anticipated registration of forex-only managers and funds, this interpretive notice may apply in the future.

If you have any questions on this interpretive notice or if it applies to your firm, please contact us to discuss your situation.  Other related forex law articles include:

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NFA COMPLIANCE RULE 2-29: DECEPTIVE ADVERTISING

INTERPRETIVE NOTICE

NFA Compliance Rule 2-29 prohibits the use of promotional material which is misleading or deceptive. The purpose of the rule is to protect the public from fraudulent advertising and sales solicitations and provide guidance to Members on the standards by which their promotional material will be evaluated.
In June 1996, NFA issued a Notice to Members (I-96-11) entitled “Deceptive Advertising.” The notice described certain misleading advertising practices that some Members were employing, mainly in radio and TV ads. These included claims suggesting that so-called seasonal trades produce dramatic profits year-in and year-out; claims regarding historic price moves in particular commodities that suggested that the same record setting move was likely to occur again; claims of dramatic profits made by customers based on isolated trades in specific customer accounts (so-called “cherry picked” trades); and claims concerning projected profits, (e.g., “turn $10,000 into $40,000″).

The June 1996 Notice made clear that NFA would regard these types of claims to be misleading and a clear violation of NFA sales practice rules unless the Member can demonstrate that based on the actual performance of its customers those claims are not misleading. Since the issuance of the June 1996 Notice, NFA has brought a number of disciplinary cases against Members who have employed misleading advertising techniques of the type described in the Notice. Recently, however, NFA has encountered variations of these types of advertising problems. Due to these recent developments, NFA considers it advisable to issue this supplemental Notice.

“MATHEMATICAL EXAMPLES OF LEVERAGE” AND DISCLAIMER STATEMENTS

NFA has consistently maintained that: 1) it is a violation of NFA’s sales practice rules for a Member to mislead customers by suggesting that they have a high probability of achieving dramatic profits trading futures and options unless the Member’s customers’ performance validates such a claim; and 2) it is permissible for Members to use examples in their advertising to illustrate the effect of leverage in futures and options trading.

A problem that has developed is that some Members are improperly using “leverage examples” as a means of suggesting that prospective customers are likely to earn large profits trading futures and options when the past performance of the Members’ customers does not support this claim. In some cases, Members will include disclaimer statements in their ads indicating that references to future profits are only “mathematical examples” of the effect of leverage and that no representation is made that any of the Member’s customers has achieved or is likely to achieve profits similar to those in the example. Notwithstanding these disclaimers, the entire thrust of the ad is to convey exactly the opposite message. In these circumstances, disclaimer statements will not provide a safe harbor or insulate the Member from liability for a misleading ad which presents a distorted picture of the probability of success trading futures and options.

A variation of this technique involves highlighting the tremendous profits which will result from projected price movements which are characterized, directly or indirectly, as conservative estimates when, in fact, such price movements would be dramatic. Ads that use this technique are highly misleading.

USING PRICE MOVES FOR ONE PRODUCT TO SOLICIT INVESTORS FOR A DIFFERENT PRODUCT

An additional problem that NFA has noted with some recent ads, particularly those which refer to seasonal trades and historical prices, is that they refer to historical price data for different products than the investment products being sold. For example, ads for options often cite price data relating not to options but to cash or futures prices of the underlying commodity. This practice can be highly misleading. Options prices do not necessarily move in tandem with cash or futures prices. In fact, in many of these ads, the price of the options which are being sold only move a fraction of the price move in the underlying futures.

Historical pricing data must be for the product being marketed. Thus, if a Member is soliciting for options, then any pricing data that is used must refer to the historical premium value of the option that most closely resembles the type of option that is being marketed; it would be improper, for example, to cite historical price moves relating to at-the-money options when marketing out-of-the-money options. Promotional material that uses historical price data for a product different from the one being marketed in the promotional material will be considered per se misleading and a violation of NFA’s sales practice rules.

Examples of the types of ads that NFA will regard as misleading include:

• ads that use pricing data relative to the cash or futures markets to sell options
• ads that use pricing data for at-the-money options to sell out-of-the-money options
• ads that use pricing data which does not include commissions and fees comparable to those charged by the Member

An ad touting seasonal trades can also be misleading, even if it uses historical pricing data for the same product that is being offered for sale, if it cherry picks optimal entry and exit prices and suggests that they demonstrate a consistent price trend when no such consistent price trend exists. For example, it is misleading to claim that heating oil options always go up in value from summer lows to winter highs when heating oil - like all commodity markets - has peaks and valleys and one would incur losses during purported seasonal periods by buying at the high and selling at the low.

December 17, 2008 | Filed Under Laws and Regulations

 

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