Federal Trade Commission Act Section 5: Unfair or Deceptive Acts or Practices

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Federal Trade Commission Act
Section 5: Unfair or Deceptive Acts or Practices

Background                                             • A consumer’s interpretation of the representation,
                                                         omission, or practice is considered reasonable
Section 5 of the Federal Trade Commission Act            under the circumstances; and
(FTC Act) (15 USC 45) prohibits ‘‘unfair or
                                                       • The misleading representation, omission, or prac-
deceptive acts or practices in or affecting
                                                         tice is material.
commerce.’’ The prohibition applies to all persons
engaged in commerce, including banks. Under
section 8 of the Federal Deposit Insurance Act,        Relationship of Section 5 to
the Board has the authority to take appropriate        Other Laws and Ratings
action when unfair or deceptive acts or practices
are discovered.                                        Some acts or practices may violate both section 5
                                                       of the FTC Act and other federal or state laws.
   Responsibilities for enforcing the prohibition
                                                       Other acts or practices may violate only the FTC
against unfair or deceptive practices as they apply
                                                       Act while fully complying with other consumer
to state-chartered banks are spelled out in a joint
                                                       protection laws and regulations. If a possible
statement issued on March 11, 2004, by the Board
                                                       violation of the FTC Act is found, the examiner
and the Federal Deposit Insurance Corporation.
                                                       should consider whether other statutory or regula-
That statement, which is included as an appendix
                                                       tory violations have occurred (the joint statement
to this chapter, describes in depth the legal
                                                       identifies laws that warrant particular attention in
standards for unfair and deceptive acts or prac-
                                                       this regard).
tices, discusses the management of risks relating
to unfair or deceptive acts or practices, and              In addition, if an illegal credit practice is
provides general guidance on measures that             identified through a review of FTC Act compli-
state-chartered banks can take to avoid engaging       ance, the examiner should consider whether the
in such acts or practices, including best practices.   illegal practice would adversely affect the institu-
                                                       tion’s Community Reinvestment Act rating pursu-
                                                       ant to the regulatory requirements of 12 CFR
Legal Standards                                        228.28(c).

The legal standards for unfairness and deception
are independent of each other; depending on the        Compliance Risk Evaluation
facts, an act or practice may be unfair, deceptive,
or both. The legal standards are briefly described     Violations of section 5 of the FTC Act can present
here.                                                  significant legal, reputational, and compliance risks
                                                       for banks. This possibility intensifies the need for
                                                       examiners to assess compliance with section 5 in
Unfair Acts or Practices                               conjunction with consumer compliance examina-
                                                       tions, related supervisory activities, and consumer
An act or practice is unfair where it
                                                       complaint investigations. Consistent with the
• Causes or is likely to cause substantial injury to   Board’s risk-focused consumer compliance super-
  consumers,                                           vision program, the need to assess compliance
• Cannot be reasonably avoided by consumers,           with section 5 should be considered when devel-
  and                                                  oping risk assessments, scoping an examination,
                                                       or investigating a consumer complaint.
• Is not outweighed by countervailing benefits to
  consumers or to competition.                            A determination about whether a particular act or
                                                       practice is unfair or deceptive will depend on an
   Public policy, as established by statute, regula-   analysis of the facts and circumstances. Although
tion, or judicial decisions, may be considered with    individual violations or complaints may appear
all other evidence in determining whether an act or    isolated, they may, when considered in the context
practice is unfair.                                    of additional information, including other violations
                                                       or complaints, raise concerns about unfair or
                                                       deceptive acts or practices.
Deceptive Acts or Practices
                                                         Furthermore, the prohibition against unfair or
An act or practice is deceptive where                  deceptive acts or practices applies not only to all
• A representation, omission, or practice misleads     products and services offered by a bank, but to
  or is likely to mislead the consumer;                every stage and activity, from product develop-

Consumer Compliance Handbook                                                                 FTC Act • 1 (6/08)
Section 5 of the FTC Act

ment to the creation and rollout of marketing       new or modified systems or products and to
campaigns, and to servicing and collections.        third-party arrangements.
Therefore, particular attention should be paid to

2 (6/08) • FTC Act                                                     Consumer Compliance Handbook
Federal Trade Commission Act—Section 5
Examination Objectives and Procedures

EXAMINATION OBJECTIVES                                             • Discuss any examiner concerns with bank
                                                                     management.
• To determine the adequacy of the bank’s internal
  procedures, policies, and controls to ensure
  consistent compliance with section 5 of the FTC                  Evaluating Compliance Management
  Act
                                                                   Programs
• To determine if the bank complies with section 5
  of the FTC Act, which prohibits unfair or decep-                 A bank’s compliance management program should
  tive acts or practices                                           focus on the avoidance of acts or practices that are
                                                                   unfair or deceptive and on the prompt correction of
                                                                   any such identified acts or practices. The degree of
EXAMINATION PROCEDURES                                             specificity with which a compliance management
                                                                   program should address this area will vary
To fulfill the examination objectives, and consis-
                                                                   depending on the bank’s size, complexity, and
tent with the joint statement in the appendix to this
                                                                   product offerings. A small bank that offers a limited
chapter, examiners should identify the bank’s
                                                                   number of products through a few branches may
internal policies, procedures, and controls to be
                                                                   not need the kind of specific, documented
reviewed for compliance with section 5 of the
                                                                   compliance program needed by a bank engaged
FTC Act. In particular, the bank’s compliance
                                                                   in, for example, nationwide mortgage or credit card
management systems, advertising and promo-
                                                                   lending.
tional materials, initial and subsequent disclo-
sures, servicing and collections, and management
and monitoring of employees and third parties                      Items to Evaluate
should be reviewed as they relate to the products
and services identified as potential areas of                      1. Determine whether the bank’s policies and
concern.                                                              procedures include guidance on preventing
                                                                      unfair or deceptive acts or practices.
  Examiners also should use these procedures in
conjunction with the guidance and best practices                   2. Ascertain whether the bank reviews its practices
contained in the joint statement to determine                         in the context of federal regulations, policies,
whether an unfair or deceptive act or practice has                    and decisions on unfair or deceptive acts or
occurred. Specifically, examiners should, as                          practices.
appropriate,                                                       3. Ascertain whether the bank’s compliance man-
• Review previous examinations reports, including                     agement function looks beyond the identification
  consumer compliance and safety-and-soundness                        of individual violations to determine if its prac-
  examination reports;                                                tices may be unfair or deceptive.

• Review current and prior examination findings                    4. Determine whether the bank trains its employees
  regarding the institution’s compliance with Regu-                   on the provisions of the FTC Act that prohibit
  lation AA (Unfair or Deceptive Acts or Practices:                   unfair or deceptive acts or practices.
  Credit Practices Rules);1                                        5. Determine whether the bank reviews consumer
• Review the bank’s policies, procedures, and                         complaints to identify potential compliance prob-
  internal controls;                                                  lems and negative trends that have the potential
                                                                      to be unfair or deceptive. Determine whether the
• Review a sample of consumer complaints, adver-                      bank reviews concentrations of complaints about
  tisements and promotional materials, disclo-                        the same product or about bank conduct in
  sures, customer agreements, and third-party                         order to identify potential areas of concern.
  contracts and instructions;
                                                                   6. Determine whether the bank has identified any
• Interview management and staff about the bank’s                     potentially unfair or deceptive acts or practices
  acts and practices; and                                             and, if it has, verify that it corrected the identified
                                                                      concerns and provided restitution to affected
  1. See the examination procedures for Regulation AA elsewhere       persons when appropriate.
in this handbook. Regulation AA applies to consumer credit
contracts other than those for the purchase of real estate. It     7. If the bank has identified potentially unfair or
prohibits banks and their subsidiaries from using (1) certain         deceptive acts or practices, determine if it has
provisions in their consumer credit contracts, (2) a late-charge
accounting practice known as pyramiding, and (3) deceptive            implemented changes to prevent future
cosigner practices.                                                   recurrences.

Consumer Compliance Handbook                                                                                FTC Act • 3 (6/08)
Section 5: Examination Objectives and Procedures

8. Determine whether the bank clearly discloses a                         value, availability, cost savings, benefits, or
   telephone number or mailing address (and an                            terms of the product or service.
   e-mail address or website if applicable) that                       5. Determine whether the bank reviews all adver-
   consumers may use to contact the bank or its                           tisements, promotional materials, and market-
   third-party servicers regarding any complaints                         ing scripts to ensure that they fairly and
   or inquiries they may have.                                            adequately describe the terms, benefits, and
9. Determine whether the bank’s management is                             material limitations of the product or service
   involved both in the development of new prod-                          being offered, including any related or optional
   ucts and services and in decisions to reprice or                       products or services, and that they do not
   change the terms of existing products and                              misrepresent such terms either affirmatively or
   services.                                                              by omission.
                                                                       6. Determine whether the bank avoids advertising
Evaluating Advertising and                                                that a particular service or benefit will be
                                                                          provided in connection with an account if the
Promotional Materials                                                     bank does not intend or is not able to provide
Because of the increasing complexity of certain                           the service or benefit to account holders.
products, particularly mortgage loans and credit                       7. Determine whether the bank draws the atten-
cards, a bank’s advertising and promotional                               tion of customers to key terms, including
materials should be presented in a clear, bal-                            limitations and conditions that are important in
anced, and timely manner, with special attention                          enabling customers to make informed deci-
paid to products targeted toward the elderly,                             sions about whether the product or service
financially vulnerable, or financially unsophisti-                        meets their needs.
cated.2 Advertising and promotional materials
should present not only the benefits of the                            8. Determine whether the bank, when using such
products and services, but also any potential                             terms as ‘‘pre-approved,’’ ‘‘guaranteed,’’ or
risks, such as payment shock or negative                                  ‘‘fixed rates,’’ clearly discloses any limitations,
amortization. When a bank’s business is driven                            conditions, or restrictions on the offer.
largely by product marketing and promotion, it                         9. Determine whether the bank ensures that the
should exercise particular caution to avoid poten-                        costs and benefits of related or optional
tially unfair or deceptive acts or practices.                             products and services, such as overdraft
                                                                          protection, are clearly explained and are not
                                                                          misrepresented or presented in an incomplete
Items to Evaluate
                                                                          or overly complex manner.
 1. Determine whether the bank reviews all adver-
                                                                       10. Determine whether the bank avoids advertis-
    tisements, promotional materials, and market-
                                                                           ing terms that are not available to most
    ing scripts to ensure that there is a reasonable
                                                                           customers and avoids using unrepresentative
    factual basis for all representations made.
                                                                           examples in advertising, marketing, and pro-
 2. Determine whether the bank reviews all adver-                          motional materials.
    tisements, promotional materials, and market-
                                                                       11. Determine whether the bank reviews its web-
    ing scripts to ensure that these materials do not
                                                                           site content and navigational process to ensure
    use fine print, separate statements, or incon-
                                                                           that consumers are able to readily obtain the
    spicuous disclosures to correct potentially
                                                                           necessary disclosures for its products.
    misleading headlines.
                                                                       12. Determine whether the bank reviews its adver-
 3. Determine whether the bank tailors advertise-
                                                                           tising and promotional materials to avoid rais-
    ments, promotional materials, and marketing
                                                                           ing concerns about unfair or deceptive acts or
    scripts to take into account the sophistication
                                                                           practices.
    and experience of the target audience, includ-
    ing the elderly and financially vulnerable.
 4. Determine whether the bank (or its third-party                     Evaluating Initial and
    servicer), in advertisements, promotional mate-                    Subsequent Disclosures
    rials, marketing scripts, and recorded tele-
    phone conversations, makes claims, represen-                       A bank’s disclosures with respect to initial terms
    tations, or statements that may mislead                            and conditions, repricing, and changes in terms
    members of the target audience about the cost,                     should be clear and accurate. The terms and
                                                                       conditions of many credit and deposit products are
                                                                       variable and may change periodically on the basis
   2. Advertising and promotional materials include print and
electronic materials as well as scripts used for radio, Internet, or   of external variables, such as changes in the prime
television advertising and telemarketing.                              rate. Many credit card products have terms that

4 (6/08) • FTC Act                                                                              Consumer Compliance Handbook
Section 5: Examination Objectives and Procedures

may change or increase automatically following a            terms of an account or product, determine
specific event, such as an interest rate increase           whether the bank’s customer agreements clearly
triggered by a consumer’s delinquency with the              disclose that the bank may make future changes
creditor or another creditor. The disclosures for           to the rate, terms, and conditions otherwise
products such as these—products having variable             specified in any agreement signed by or given to
terms and conditions—should be clearly presented.           the consumer. Determine whether the circum-
                                                            stances under which such changes may be
                                                            made are clearly explained.
Items to Evaluate
1. Determine whether the bank reviews all cus-
   tomer agreements and disclosures to ensure            Evaluating Servicing and Collections
   that there is a reasonable factual basis for all      Servicing and collection activities present a greater
   representations made.                                 risk of potential violations of section 5 of the FTC
2. Determine whether the bank’s customer agree-          Act when conducted by affiliates or third-party
   ments and disclosures fairly and adequately           vendors and servicers. Thus, a bank should ensure
   describe the terms, benefits, and material limi-      that the disclosures provided for these servicing
   tations or conditions of the product or service       and collection activities are accurate and not
   being offered. Limitations may take the form of,      misleading. The bank should also ensure that the
   for example, limited applicability (for instance, a   activities are conducted fairly and in consonance
   special interest rate that applies only to balance    with any disclosures or agreements. For example,
   transfers), limited duration (for instance, an        statements should clearly indicate when payments
   expiration date for terms that apply only during      are due if penalties are to be avoided.
   an introductory period), or a prerequisite for
   obtaining particular terms (for instance, mini-
   mum transaction amounts or introductory or
                                                         Items to Evaluate
   other fees). Conditions may include, for example,     1. Determine whether the bank ensures that its
   the consumer’s ability to cancel a service               employees and third-party servicers have, and
   without a charge.                                        follow, procedures to credit consumer payments
                                                            in a timely manner.
3. Determine whether the bank’s disclosures make
   claims, representations, or statements that may       2. Determine whether consumers are clearly told
   mislead members of the target audience about             when and if monthly payments are applied to
   the cost, value, availability, cost savings, ben-        fees, penalties, or other charges before being
   efits, or terms of the product or service.               applied to regular principal and interest.
4. Determine whether the bank informs consumers          3. Determine whether account statements clearly
   in a clear and timely manner about any fees,             disclose how fees, penalties, other charges, and
   penalties, or other charges that have been               interest and principal payments affect the
   imposed (including charges for any force-                account balance and whether these charges
   placed products), and the reasons for their              and payments have been calculated in accor-
   imposition.                                              dance with any written agreements with the
                                                            borrower.
5. Determine whether the bank clearly discloses
   that optional or related products and services
   that are offered simultaneously with credit—          Monitoring the Conduct of
   such as insurance, travel services, credit protec-
   tion, and consumer report update services—are
                                                         Employees and Third Parties
   not required as a prerequisite to obtaining credit    A bank should have effective controls in place for
   or are not considered in decisions to grant           hiring personnel and for contracting and maintain-
   credit.                                               ing relationships with third parties. The controls
6. Determine whether the bank, when making               should, for example, establish responsibilities vis-
   claims about amounts of credit available to           a-vis third parties for training and monitoring staff.
   consumers, accurately and completely repre-           The controls should also foster the bank’s ability to
   sents the amount of potential, approved, or           monitor the actual practices of its employees and
   usable credit that the consumer will receive.         third-party contractors and ensure that these
                                                         practices are consistent with the bank’s policies
7. Determine whether the bank clearly informs a
                                                         and procedures, applicable laws and regulations,
   consumer when the account terms approved for
                                                         and third-party agreements. In addition, the bank’s
   the consumer are less favorable than the terms
                                                         monitoring should include a review of training and
   advertised or previously disclosed.
                                                         promotional materials used by its employees and
8. If the bank reserves the right to change the          by third parties, to ensure that any concerns about

Consumer Compliance Handbook                                                                   FTC Act • 5 (6/08)
Section 5: Examination Objectives and Procedures

unfair or deceptive acts or practices are identified      tors provide incentives for acts or practices that
early.                                                    could raise potential concerns, such as compen-
                                                          sation programs that steer consumers to particu-
                                                          lar products to the exclusion of other, potentially
Items to Evaluate                                         beneficial products.
1. Determine whether, through its third-party agree-    3. Determine whether the bank monitors the train-
   ments and internal policies, the bank has               ing of employees and third parties who market or
   effective controls for monitoring risks associated      promote bank products or service loans, to
   with selecting and managing third-party contrac-        ensure that they are adequately trained to avoid
   tors. Such agreements and policies should               making statements or taking actions that might
   outline the degree of monitoring, acceptable            be unfair or deceptive. Monitoring should in-
   error rates, and corrective action provisions in        clude a review of training and promotional
   case of noncompliance. They also should iden-           materials, including telemarketing scripts.
   tify issues that would need to be brought to the     4. Determine whether the bank monitors a third
   attention of bank management.                           party’s primary interface with consumers by, for
2. Determine whether the bank’s compensation               example, reviewing recorded telephone calls or
   programs for employees and third-party contrac-         transcripts of online communications.

6 (6/08) • FTC Act                                                              Consumer Compliance Handbook
Federal Trade Commission Act—Section 5
Appendix: Statement on Unfair or Deceptive Acts
or Practices by State-Chartered Banks

The following statement was issued jointly by the                     example, the Federal Trade Commission has
Board of Governors of the Federal Reserve System                      broad authority to enforce the requirements of
and the Federal Deposit Insurance Corporation on                      section 5 of the FTC Act against many non-bank
March 11, 2004.                                                       entities.6 In addition, state authorities have pri-
                                                                      mary responsibility for enforcing state statutes
                                                                      against unfair or deceptive acts or practices. The
Purpose                                                               agencies intend to work with these other regula-
The Board of Governors of the Federal Reserve                         tors as appropriate in investigating and respond-
System and the Federal Deposit Insurance Corpo-                       ing to allegations of unfair or deceptive acts or
ration (the Board and the FDIC, or, collectively, the                 practices that involve state banks and other
agencies) are issuing this statement to outline the                   entities supervised by the agencies.
standards that will be considered by the agencies
as they carry out their responsibility to enforce the                 Standards for Determining What Is
prohibitions against unfair or deceptive trade
practices found in section 5 of the Federal Trade                     Unfair or Deceptive
Commission Act (FTC Act)3 as they apply to acts                       The FTC Act prohibits unfair or deceptive acts or
and practices of state-chartered banks. The agen-                     practices. Congress drafted this provision broadly
cies will apply these standards when weighing the                     in order to provide sufficient flexibility in the law
need to take supervisory and enforcement actions                      to address changes in the market and unfair or
and when seeking to ensure that unfair or decep-                      deceptive practices that may emerge.7
tive practices do not recur.
                                                                         An act or practice may be found to be unfair
  This statement also contains a section on                           where it ‘‘causes or is likely to cause substantial
managing risks relating to unfair or deceptive acts                   injury to consumers which is not reasonably
or practices that includes best practices, as well as                 avoidable by consumers themselves and not
general guidance on measures that state-chartered                     outweighed by countervailing benefits to consum-
banks can take to avoid engaging in such acts or                      ers or to competition.’’8 A representation, omission,
practices.                                                            or practice is deceptive if it is likely to mislead
  Although the majority of insured banks adhere to                    a consumer acting reasonably under the circum-
a high level of professional conduct, banks must                      stances and is likely to affect a consumer’s conduct
remain vigilant against possible unfair or deceptive                  or decision regarding a product or service.
acts or practices both to protect consumers and to                       The standards for unfairness and deception are
minimize their own risks.                                             independent of each other. While a specific act or
                                                                      practice may be both unfair and deceptive, an act
Coordination of Enforcement Efforts                                   or practice is prohibited by the FTC Act if it is
                                                                      either unfair or deceptive. Whether an act or
Section 5(a) of the FTC Act prohibits ‘‘unfair or                     practice is unfair or deceptive will in each
deceptive acts or practices in or affecting com-                      instance depend upon a careful analysis of the
merce’’4 and applies to all persons engaged in                        facts and circumstances. In analyzing a particular
commerce, including banks. The agencies each                          act or practice, the agencies will be guided by the
have affirmed their authority under section 8 of the                  body of law and official interpretations for defining
Federal Deposit Insurance Act to take appropriate                     unfair or deceptive acts or practices developed
action when unfair or deceptive acts or practices                     by the courts and the FTC. The agencies will also
are discovered.5                                                      consider factually similar cases brought by the
  A number of regulators have authority to
combat unfair or deceptive acts or practices. For
                                                                         6. 15 USC 45(a)(2) and Gramm−Leach−Bliley Act, section 133,
  3. 15 USC 45.                                                       published in notes to 15 USC 41.
  4. 15 USC 45(a).                                                       7. See FTC Policy Statement on Unfairness (December 17,
  5. 12 USC 1818(b)(1), (e)(1), and (i)(2). See letter from           1980) and FTC Policy Statement on Deception (October 14,
Chairman Alan Greenspan to the Hon. John J. LaFalce (May 30,          1983).
2002) and ‘‘Unfair or Deceptive Acts or Practices: Applicability of      8. This standard was first issued as a policy by the FTC and
the Federal Trade Commission Act,’’ FIL 57-2002 (May 30, 2002).       later codified into the FTC Act as 15 USC 45(n).

Consumer Compliance Handbook                                                                                       FTC Act • 7 (6/08)
Section 5: Appendix

FTC and other regulators to ensure that these                 Costs that would be incurred for remedies or
standards are applied consistently.                        measures to prevent the injury are also taken into
                                                           account in determining whether an act or prac-
                                                           tice is unfair. These costs may include the costs
Unfair Acts or Practices                                   to the bank in taking preventive measures and
                                                           the costs to society as a whole of any increased
Assessing Whether an Act or Practice                       burden and similar matters.
Is Unfair
                                                         • Public policy may be considered—Public policy,
An act or practice is unfair where it (1) causes or is     as established by statute, regulation, or judicial
likely to cause substantial injury to consumers,           decisions, may be considered with all other
(2) cannot be reasonably avoided by consumers,             evidence in determining whether an act or
and (3) is not outweighed by countervailing ben-           practice is unfair. For example, the fact that a
efits to consumers or to competition. Public policy        particular lending practice violates a state law
may also be considered in the analysis of whether          or a banking regulation may be considered
a particular act or practice is unfair. Each of these      as evidence in determining whether the act or
elements is discussed further below.                       practice is unfair. Conversely, the fact that a
                                                           particular practice is affirmatively allowed by
• The act or practice must cause or be likely to
                                                           statute may be considered as evidence that the
  cause substantial injury to consumers—To be
                                                           practice is not unfair. Public policy considera-
  unfair, an act or practice must cause or be likely
                                                           tions by themselves, however, will not serve as
  to cause substantial injury to consumers. Sub-
                                                           the primary basis for determining that an act or
  stantial injury usually involves monetary harm.
                                                           practice is unfair.
  An act or practice that causes a small amount
  of harm to a large number of people may be
  deemed to cause substantial injury. An injury
  may be substantial if it raises a significant risk     Deceptive Acts and Practices
  of concrete harm. Trivial or merely speculative
  harms are typically insufficient for a finding of      Assessing Whether an Act or Practice
  substantial injury. Emotional impact and other         Is Deceptive
  more subjective types of harm will not ordinarily
                                                         A three-part test is used to determine whether a
  make a practice unfair.
                                                         representation, omission, or practice is ‘‘decep-
• Consumers must not reasonably be able to avoid         tive.’’ First, the representation, omission, or practice
  the injury—A practice is not considered unfair if      must mislead or be likely to mislead the consumer.
  consumers may reasonably avoid injury. Consum-         Second, the consumer’s interpretation of the repre-
  ers cannot reasonably avoid injury from an act         sentation, omission, or practice must be rea-
  or practice if it interferes with their ability to     sonable under the circumstances. Lastly, the
  effectively make decisions. Withholding material       misleading representation, omission, or practice
  price information until after the consumer has         must be material. Each of these elements is
  committed to purchase the product or service           discussed below in greater detail.
  would be an example of preventing a consumer
                                                         • There must be a representation, omission, or
  from making an informed decision. A practice
                                                           practice that misleads or is likely to mislead the
  may also be unfair where consumers are subject
                                                           consumer—An act or practice may be found to
  to undue influence or are coerced into purchas-
                                                           be deceptive if there is a representation, omis-
  ing unwanted products or services.
                                                           sion, or practice that misleads or is likely to
    The agencies will not second-guess the wis-            mislead the consumer. Deception is not limited to
  dom of particular consumer decisions. Instead,           situations in which a consumer has already been
  the agencies will consider whether a bank’s              misled. Instead, an act or practice may be found
  behavior unreasonably creates or takes advan-            to be deceptive if it is likely to mislead consum-
  tage of an obstacle to the free exercise of              ers. A representation may be in the form of
  consumer decision making.                                express or implied claims or promises and may
• The injury must not be outweighed by counter-            be written or oral. Omission of information may be
  vailing benefits to consumers or to competition—         deceptive if disclosure of the omitted information
  To be unfair, the act or practice must be injurious      is necessary to prevent a consumer from being
  in its net effects—that is, the injury must not be       misled.
  outweighed by any offsetting consumer or com-              In determining whether an individual state-
  petitive benefits that are also produced by the act      ment, representation, or omission is misleading,
  or practice. Offsetting benefits may include lower       the statement, representation, or omission will not
  prices or a wider availability of products and           be evaluated in isolation. The agencies will
  services.                                                evaluate it in the context of the entire adver-

8 (6/08) • FTC Act                                                                 Consumer Compliance Handbook
Section 5: Appendix

  tisement, transaction, or course of dealing to              that the institution intended that the consumer
  determine whether it constitutes deception. Acts            draw certain conclusions based upon the claim.
  or practices that have the potential to be                     Claims made with the knowledge that they are
  deceptive include making misleading cost or                 false will also be presumed to be material.
  price claims; using bait-and-switch techniques;             Omissions will be presumed to be material
  offering to provide a product or service that is not        when the financial institution knew or should
  in fact available; omitting material limitations or         have known that the consumer needed the
  conditions from an offer; selling a product unfit for       omitted information to evaluate the product or
  the purposes for which it is sold; and failing to           service.
  provide promised services.
• The act or practice must be considered from               Relationship to Other Laws
  the perspective of the reasonable consumer—In
  determining whether an act or practice is                 Acts or practices that are unfair or deceptive within
  misleading, the consumer’s interpretation of or           the meaning of section 5 of the FTC Act may also
  reaction to the representation, omission, or              violate other federal or state statutes. On the other
  practice must be reasonable under the circum-             hand, there may be circumstances in which an act
  stances. The test is whether the consumer’s               or practice violates section 5 of the FTC Act even
  expectations or interpretation are reasonable in          though the institution is in technical compliance
  light of the claims made. When representations            with other applicable laws, such as consumer
  or marketing practices are targeted to a specific         protection and fair lending laws. Banks should be
  audience, such as the elderly or the financially          mindful of both possibilities. The following laws
  unsophisticated, the standard is based upon               warrant particular attention in this regard.
  the effects of the act or practice on a
  reasonable member of that group.                          Truth in Lending
     If a representation conveys two or more                and Truth in Savings Acts
  meanings to reasonable consumers and one
                                                            Pursuant to the Truth in Lending Act (TILA),
  meaning is misleading, the representation may
                                                            creditors must ‘‘clearly and conspicuously’’ dis-
  be deceptive. Moreover, a consumer’s interpre-
                                                            close the costs and terms of credit.9 The Truth in
  tation or reaction may indicate that an act or
                                                            Savings Act (TISA) requires depository institutions
  practice is deceptive under the circumstances,
                                                            to provide interest and fee disclosures for deposit
  even if the consumer’s interpretation is not
                                                            accounts so that consumers can compare deposit
  shared by a majority of the consumers in the
                                                            products.10 TISA also provides that advertisements
  relevant class, so long as a significant minority
                                                            must not be misleading or inaccurate and must not
  of such consumers is misled.
                                                            misrepresent an institution’s deposit contract. An
     In evaluating whether a representation, omis-          act or practice that does not comply with these
  sion, or practice is deceptive, the agencies will         provisions of TILA or TISA may also violate the FTC
  look at the entire advertisement, transaction, or         Act. On the other hand, a transaction that is in
  course of dealing to determine how a reason-              technical compliance with TILA or TISA may
  able consumer would respond. Written disclo-              nevertheless violate the FTC Act. For example,
  sures may be insufficient to correct a mislead-           consumers could be misled by advertisements of
  ing statement or representation, particularly             ‘‘guaranteed’’ or ‘‘lifetime’’ interest rates when the
  where the consumer is directed away from                  creditor or depository institution intends to change
  qualifying limitations in the text or is counseled        the rates, whether or not the disclosures satisfy the
  that reading the disclosures is unnecessary.              technical requirements of TILA or TISA.
  Likewise, oral disclosures or fine print may be
  insufficient to cure a misleading headline or
  prominent written representation.                         Equal Credit Opportunity
                                                            and Fair Housing Acts
• The representation, omission, or practice must
  be material—A representation, omission, or prac-          The Equal Credit Opportunity Act (ECOA) prohibits
  tice is material if it is likely to affect a consumer’s   discrimination against persons in any aspect of a
  decision regarding a product or service. In               credit transaction on the basis of race, color,
  general, information about costs, benefits, or            religion, national origin, sex, marital status, age
  restrictions on the use or availability of a product      (provided the applicant has the capacity to con-
  or service is material. When express claims are           tract), the fact that an applicant’s income derives
  made with respect to a financial product or               from any public assistance program, and the fact
  service, the claims will be presumed to be
  material. Similarly, the materiality of an implied         9. 15 USC 1632(a).
  claim will be presumed when it is demonstrated             10. 12 USC 4301 et seq.

Consumer Compliance Handbook                                                                      FTC Act • 9 (6/08)
Section 5: Appendix

that the applicant has in good faith exercised any          sent such terms either affirmatively or by
right under the Consumer Credit Protection Act.             omission. Ensure that these materials do not use
Similarly, the Fair Housing Act (FHA) prohibits             fine print, separate statements, or inconspicu-
creditors involved in residential real estate transac-      ous disclosures to correct potentially misleading
tions from discriminating against any person on the         headlines, and ensure that there is a reasonable
basis of race, color, religion, sex, handicap, familial     factual basis for all representations made.
status, or national origin. Unfair or deceptive
                                                          • Draw the attention of customers to key terms,
practices that target or have a disparate impact on
                                                            including limitations and conditions, that are
consumers who are members of these protected
                                                            important in enabling the customer to make an
classes may violate the ECOA or the FHA, as well
as the FTC Act.                                             informed decision regarding whether the product
                                                            or service meets the customer’s needs.
                                                          • Clearly disclose all material limitations or condi-
Fair Debt Collection Practices Act                          tions on the terms or availability of products or
The Fair Debt Collection Practices Act prohibits            services, such as a limitation that applies a
unfair, deceptive, and abusive practices related to         special interest rate only to balance transfers; the
the collection of consumer debts. Although this             expiration date for terms that apply only during
statute does not by its terms apply to banks that           an introductory period; material prerequisites for
collect their own debts, failure to adhere to the           obtaining particular products, services, or terms
standards set by this act may support a claim of            (for example, minimum transaction amounts,
unfair or deceptive practices in violation of the FTC       introductory or other fees, or other qualifications);
Act. Moreover, banks that either affirmatively              or conditions for canceling a service without
or through lack of oversight permit a third-party           charge when the service is offered on a free trial
debt collector acting on their behalf to engage in          basis.
deception, harassment, or threats in the collection       • Inform consumers in a clear and timely manner
of monies due may be exposed to liability for               about any fees, penalties, or other charges
approving or assisting in an unfair or deceptive act        (including charges for any force-placed prod-
or practice.                                                ucts) that have been imposed, and the reasons
                                                            for their imposition.

Managing Risks Related to Unfair or                       • Clearly inform customers of contract provisions
                                                            that permit a change in the terms and conditions
Deceptive Acts or Practices                                 of an agreement.
Since the release of the FDIC’s statement and the         • When using terms such as ‘‘preapproved’’ or
Board’s letter on unfair and deceptive practices in         ‘‘guaranteed,’’ clearly disclose any limitations,
May 2002, bankers have asked for guidance on                conditions, or restrictions on the offer.
strategies for managing risk in this area. This
                                                          • Clearly inform consumers when the account
section outlines guidance on best practices to
                                                            terms approved by the bank for the consumer are
address some areas with the greatest potential for
                                                            less favorable than the advertised terms or terms
unfair or deceptive acts and practices, including
                                                            previously disclosed.
advertising and solicitation, servicing and collec-
tions, and the management and monitoring of               • Tailor advertisements, promotional materials, dis-
employees and third-party service providers. Banks          closures, and scripts to take account of the
should also monitor compliance with their own               sophistication and experience of the target
policies in these areas and should have proce-              audience. Do not make claims, representations,
dures for receiving and addressing consumer                 or statements that mislead members of the target
complaints and monitoring activities performed by           audience about the cost, value, availability, cost
third parties on behalf of the bank.                        savings, benefits, or terms of the product or
                                                            service.
  To avoid engaging in unfair or deceptive activity,
the agencies encourage use of the following               • Avoid advertising that a particular service will be
practices, which have already been adopted by               provided in connection with an account if the
many institutions:                                          bank does not intend, or is not able, to provide
                                                            the service to account holders.
• Review all promotional materials, marketing
  scripts, and customer agreements and disclo-            • Clearly disclose when optional products and
  sures to ensure that they fairly and adequately           services—such as insurance, travel services,
  describe the terms, benefits, and material                credit protection, and consumer report update
  limitations of the product or service being               services that are offered simultaneously with
  offered, including any related or optional prod-          credit—are not required to obtain credit or
  ucts or services, and that they do not misrepre-          considered in decisions to grant credit.

10 (6/08) • FTC Act                                                                 Consumer Compliance Handbook
Section 5: Appendix

• Ensure that the costs and benefits of optional or      servicers to ensure that they do not create
  related products and services are not misrepre-        unintended incentives to engage in unfair or
  sented or presented in an incomplete manner.           deceptive practices.
• When making claims about amounts of credit           • Ensure that the institution and its third-party
  available to consumers, accurately and com-            servicers have and follow procedures to credit
  pletely represent the amount of potential,             consumer payments in a timely manner. Consum-
  approved, or usable credit that the consumer will      ers should be clearly told when and if monthly
  receive.                                               payments are applied to fees, penalties, or other
                                                         charges before being applied to regular principal
• Avoid advertising terms that are not available to
                                                         and interest.
  most customers and using unrepresentative
  examples in advertising, marketing, and promo-         The need for clear and accurate disclosures that
  tional materials.                                    are sensitive to the sophistication of the target
                                                       audience is heightened for products and services
• Avoid making representations to consumers that
                                                       that have been associated with abusive practices.
  they may pay less than the minimum amount
                                                       Accordingly, banks should take particular care in
  required by the account terms without ade-
                                                       marketing credit and other products and services
  quately disclosing any late fees, over-limit fees,
                                                       to the elderly, the financially vulnerable, and
  or other account fees that will result from the
                                                       customers who are not financially sophisticated. In
  consumer’s paying such a reduced amount.
                                                       addition, creditors should pay particular attention
• Clearly disclose a telephone number or mailing       to ensure that disclosures are clear and accurate
  address (and, as an addition, an e-mail or web       with respect to the points and other charges that
  site address if available) that consumers may use    will be financed as part of home-secured loans; the
  to contact the bank or its third-party servicers     terms and conditions related to insurance offered
  regarding any complaints they may have, and          in connection with loans; loans covered by the
  maintain appropriate procedures for resolving        Home Ownership and Equity Protection Act; reverse
  complaints. Consumer complaints should also be       mortgages; credit cards designed to rehabilitate
  reviewed by banks to identify practices that have    the credit position of the cardholder; and loans with
  the potential to be misleading to customers.         prepayment penalties, temporary introductory
• Implement and maintain effective risk and super-     terms, or terms that are not available as advertised
  visory controls to select and manage third-party     to all consumers.
  servicers.
• Ensure that employees and third parties who          Conclusion
  market or promote bank products, or service
                                                       The development and implementation of policies
  loans, are adequately trained to avoid making
                                                       and procedures in these areas and the other steps
  statements or taking actions that might be unfair
                                                       outlined above will help banks ensure that products
  or deceptive.
                                                       and services are provided in a manner that is fair,
• Review compensation arrangements for bank            allows informed customer choice, and is consistent
  employees as well as third-party vendors and         with the FTC Act.

Consumer Compliance Handbook                                                                FTC Act • 11 (6/08)
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