To say marketing efforts have changed over the years is, at the least, a pretty big understatement.
While newspapers and television are still used, there are all kinds of different online and/or electronic options. While newspapers and television traditionally provide “time and space” to market products, there can also be varying levels of involvement, especially when you consider online promotions that involve “targeted” marketing. For example, this may include different strategies related to the design of an ad, who gets it, and even when to send it.
The CFPB recently issued an Interpretive Rule to clarify that those who assist with different strategies related toyour marketing efforts are service providers and, as a result, they too are subject to The Consumer Financial Protection Act of 2010 (CFPA), which includes the prohibition on unfair, deceptive, or abusive acts or practices (UDAAP). The CFPB effectively draws a distinction between those who may just offer “time or space” for an ad versus those …materially involved in the development of content strategy by identifying or selecting prospective customers and/or selecting or placing content to affect consumer engagement…
So, what does this mean for financial institutions? Whether an individual or entity qualifies as a service provider subject to The CFPA will be based on specific facts and circumstances. If you use such a service provider for your marketing efforts (i.e., an individual or entity that helps with your design, distribution strategy, etc.), you may see some changes in how they operate. These service providers may, and likely will, be taking a closer look at who is to receive various promotions (as they should be). You might recall that there have been claims of potential illegal discrimination when online platforms “screen” who can see certain advertising. We could start to hear more of this.
The issuance of this interpretive rule is also interesting in light of the CFPB’s efforts to take on “unfair discrimination” under its UDAAP authority. It’s important to note that the CFPB clarified service providers are subject to The CFPA does not relieve institutions of their responsibilities. If you have an individual or entity acting as a service provider, remember that you need an understanding of if and how they screen who sees what.
Are your institution’s advertising efforts in compliance? Check out our “Advertising” webinar!
Published
2022/08/29
