Main Headline

• Annuities are unique financial products, appropriate for a variety of long-term needs and objectives. However, they are not right for everyone.
• To ensure that these products are appropriately presented, recommended, and placed, the insurance industry has established specific guidelines that must be followed. These guidelines are set forth in the NAIC's Suitability in Annuity Transactions Model Regulation, which was revised in 2020.
• The NAIC's Suitability in Annuity Transactions Model Regulation now includes a best interest standard. This standard is higher than the previous suitability standard but does not impose fiduciary duties on a producer.
• Meeting the best interest standard means that the consumer's insurance needs and financial objectives are effectively addressed.
• To promote the best interest standard, the revised regulation establishes certain obligations on annuity producers: the obligation of care, the obligation of disclosure (including disclosure of any conflicts of interest), and the obligation of documentation.
• Central to the best interest determination is the consumer information that is to be gathered and analyzed for every annuity prospect. Producers must collect certain required data about the prospect or client and use this information as the basis for any annuity product recommendation.
• Insurers must establish supervision systems designed to achieve compliance with the NAIC's revised model regulation.
• The producer should follow a needs-based approach to annuity product placements: determine the client's needs and objectives; match the client's needs and objectives with the appropriate product design; disclose to the client the facts associated with the product; and encourage client questions to reinforce the product's suitability.
• Only when an annuity will meet the buyer's best interest and support his or her financial needs, goals, and objectives should it become a part of the client's financial portfolio.

Annuities can be key building blocks for a sound retirement plan. They offer the means to achieve tax-deferred growth- fixed, indexed, or variable—and a way to ensure lifelong income. Annuities have become fixtures in the retirement and investment plans of millions of Americans. However, though they offer unique advantages and benefits, they also entail a number of limitations and restrictions. Accordingly, they may or may not be appropriate for any given client or prospect. More and more, producers are being held accountable for the pertinence and relevance of the products they recommend; it is no different with annuities. In today's financial and regulatory environment, it is the producer—not the consumer— who is primarily responsible for ensuring that the placement of an annuity is not only suitable, but allied with the consumer's financial needs and objectives, and in the consumer's best interest.
In this course, we will examine the issues and standards that apply to the recommendation and sale of annuities in accordance with the NAIC's revised Suitability in Annuity Transactions Model Regulation. The core of the revised regulation is an enhanced standard of producer (and insurer) conduct in order to ensure that any annuity recommendation or sale is in the consumer's best interest.

Annuity producers are governed by distinct licensing and regulatory authorities as well as by their companies' guidelines and their own codes of ethics. Fixed and indexed annuities, as insurance products, are regulated by state insurance laws. Variable annuities, as both insurance and securities products, are regulated by both state insurance laws and federal and state securities laws.
For many years, annuity recommendation and sales standards varied greatly depending on whether the product was a fixed or variable annuity. This was because the different regulatory bodies adopted different consumer protection measures. However, over the past years, these standards became more aligned. Today, in many ways, the conduct standards for annuity producers are very similar regardless of whether they sell fixed or variable annuities.
The Previous Benchmark: Suitability
Only a few years ago, the financial services industry as a whole had determined that product suitability was the appropriate standard for recommending and placing insurance and investment products. Generally, the term suitability refers to the process of applying standard principles and business practices to determine whether a recommended product is appropriate for any given consumer. The determination is based on the consumer's objectives and needs in light of his or her unique situation and financial profile. Such assessments demand individual, case-by-case reviews and evaluations— what may be a suitable product recommendation for one consumer may not be suitable for another. Suitability requires assurance that, at the time of product purchase and upon future client case reviews, a recommended product is consistent with a consumer's financial profile, financial needs, and financial objectives.
To help producers in their suitability determinations, the insurance industry created specific guidelines and directives. Pertinent to the recommendation and placement of annuities—past and present—is the NAIC's Suitability in Annuity Transactions Model Regulation.

1.3- NAIC Suitability in Annuity Transactions Model Regulation
Virtually every state has implemented regulations that govern the marketing and sale of annuities. The foundation upon which most states have based their annuity transaction requirements is the NAIC's Suitability in Annuity Transactions Model Regulation. This regulation has been revised a number of times since it was first created, each revision reflecting the changing needs and expectations of consumers and clients, and the evolving conduct standards of the financial services industry.
Background: From Seniors to Suitable to Best Interest
Originally titled Senior Protection in Annuity Transactions Model Regulation and set forth in 2003, this model stemmed from the NAIC's adoption of a white paper calling for suitability standards for nonregistered products similar to those established by the securities industry for registered products (including variable annuities). As a result of this white paper, the NAIC formed a working group to define and design standards for the sale of annuity products, and in 2003 the Senior Protection in Annuity Transactions Model Regulation was set forth. At the time, this model was promoted as another tool that regulators could use to protect senior consumers from inappropriate annuity sales practices. As its title suggests, this original suitability regulation applied only to seniors—consumers age 65 and older.
As it became clear that the purchase of an annuity product is often a complicated and confusing process for consumers of all ages, insurance regulators soon determined that the protections of the 2003 Annuity Suitability Model Act should not be limited only to seniors. In 2006, the NAIC membership overwhelmingly adopted revisions to the Annuity Suitability Model Regulation that extended its provisions and requirements to all consumers regardless of age.
In 2010, the model again underwent significant changes. Though it still applied to all consumers regardless of their age, much of the revised 2010 model mirrored the requirements set forth by FINRA for the sale of variable annuities.
Recent Changes
In 2017, the NAIC again took up the charge of reviewing and redrafting its Annuity Suitability Model Regulation, partly in response to two significant industry rulings:
• the Department of Labor's fiduciary rule—This rule, which was finalized in 2016 but vacated entirely in 2018, would have expanded the scope of who is considered a formal fiduciary to qualified retirement plans and IRAs to include a broad swath of insurance producers and insurance companies.
• the Securities and Exchange Commission's Regulation Best Interest rule—Proposed in 2018 and finalized in June 2019, the SEC's "Regulation Bl" establishes a best-interest standard of conduct for broker-dealers (and their representatives) beyond the previous suitability obligation, and requires a broker-dealer to act in the best interest of the customer when making a recommendation and to place the customer's interest ahead of the broker-dealer or other associated persons.
Backed by the belief that consumers are better protected when there is consistency or accord in the regulations enforced by the DOL, SEC, and the states, the NAIC retooled its Annuity Suitability Model Regulation to create a framework for enhanced standards of conduct that incorporate the spirit and intent of other regulatory authorities. The revised model sets requirements that are greater than its prior suitability obligation—that is, a new best interest standard—but it does not impose a fiduciary standard.
With that background in mind, we can examine the provisions of the 2020 successor version of the Suitability in Annuity Transactions Model Regulation. Producers who are licensed in states that have adopted the NAIC model (which most have, in some shape or form) are bound to follow its requirements and guidelines as each state requires. Producers who are licensed in states that have not adopted the model must follow their own state's laws but would nonetheless do well to follow the annuity best interest guidelines as outlined by the NAIC.

1.4- Provisions of NAIC Annuity Regulation

Among the important services that NAIC models provide is defining insurance issues that are otherwise subject to broad interpretation. The revised Annuity Suitability Model Regulation brings meaning to the issue of appropriate annuity recommendations and sales through its stated purpose:
The purpose of this regulation is to require producers ... to act in the best interest of the consumer when making a recommendation of an annuity and to require insurers to establish and maintain a system to supervise recommendations so that the insurance needs and financial objectives of consumers at the time of the transaction are effectively addressed.
The essence of the regulation is captured in the final phrase of this provision: "... so that the insurance needs and financial objectives of consumers at the time of the transaction are effectively addressed." A producer's recommendation is appropriate and he or she has acted in the best interest of the consumer if, at the time of the recommendation and sale, the buyer's insurance needs and financial objectives are "effectively addressed."
Who Is a Producer?
In the context of the model regulation, a "producer" is any person or entity required to be licensed under state law to sell, solicit, or negotiate insurance, including annuities. This includes an insurer in cases where no producer is involved.
In addition, the 2020 version of the regulation extends its requirements to any and every producer who has or had material control or influence in making an annuity recommendation or sale and, as a result, received direct compensation. This applies regardless of whether the producer had or has any direct contact with the consumer.
What Is a Recommendation?
The Annuity Suitability Model Regulation has created a very broad basis for the definition of the term "recommendation," which is likely to bring many more transactions under the regulation's provisions:
Recommendation means advice provided by a producer to an individual consumer that is intended to result or does result in a purchase, an exchange, or a replacement of an annuity in accordance with that advice.
Certain practical points can be drawn from this definition:
• First, just about anything a producer might say in meeting with a prospect or client that results in the purchase of an annuity constitutes a recommendation and is, therefore, subject to the regulation.
• Second, this definition applies equally to the sale of new annuities and to the replacement or exchange of existing contracts.
It should be noted "recommendation" does not include general communications to the public, generalized customer services or support, general educational information and tools, or prospectuses.
Scope of the Regulation
It is the intent of the NAIC's 2020 regulation to cut a broad path for the application of its provisions. As a general rule, it applies to all annuity products and virtually all annuity transactions with consumers. However, there are a few exceptions. All of the following are exempt from the regulation:
• direct response solicitations where there is no recommendation based on information collected from the consumer
• settlements associated with personal injury litigation or any dispute or claim resolution process
• formal prepaid funeral contracts
• annuity contracts used to fund:
o employee pension or benefit plans covered by ERISA o qualified employer plans o Section 414 government or church plans o deferred compensation arrangements

The stated purpose of the Annuity Suitability Model Regulation begins, but does not complete, the process of clarifying the
intent and application of acting in the best interest of the consumer and effectif addressing the consumers needs and
objectives. How does a producer serve the best interest of the consumer and thus effechvely address h,s or her needs and
objectives?
The revised regulation provides very clear guidance on this requirement:
the producer must put the consumer's interest first.
• First,
• Second, the producer must meet the "care obligation," as well as
• Third, the producer must meet certain disclosure and
other enhanced conduct standards,
documentation requirements, including disclosure of any
conflicts of interest.
In many ways, the standards that attend to meeting
regulation. Let's examine them in detail.
Putting the Consumer’s Interest First
Acting in the consumer's best interest requires a producer to place the consumer
annuity recommendation, the producer must act in the interest of the consumer ,
time of the recommendation-without placing the producer's or the insurer's financial interest ahead of the consumer
interest. Certainly, there's no doubt that this standard is in line with what a consumer would expect from h,s or her
producer.
the best interest obligation constitute the heart of the revised
's interest first. Thus, when making an
—under the circumstances known at the
Meeting the “Care Obligation”
Another important component of the best interest standard is the care obligation. When making an annuity recommendation, the producer must exercise reasonable diligence, care, and skill in order to:
. know the consumer's financial situation, insurance needs, and financial objectives
• understand the available recommendation possibilities after making
a reasonable inquiry into options available to the
producer
• have a
insurance
. communicate the basis or bases of the recommendation to the consumer
Obviously, to meet the care obligation, the producer is required to have a .
and hew a recommended annuity can meet those needs. This requires gathering sufficient and appropriate 'nformafia"
about the consumer to create a ''profile" that can be analyzed and then matched to the features, benefits, costs, and
of an appropriate annuity product.
Consumer Profile Information
effectively addresses the consumer's financial situation,
reasonable basis to believe the recommended option
needs, and financial obiectives over the life of the product, in light of the consumer's profile information
broad understanding of the consumer's needs
profile includes all of the following. Producers must
The information that producers should obtain to develop a consumer
reasonable efforts to obtain this information before recommending any annuity:
make
• age
• annual income
. financial situation and needs, including debts and other obligations
• financial experience
• insurance needs
• financial objectives
• intended use of the annuity
• financial time horizon
• existing assets or
• liquidity needs
• liquid net worth
. risk tolerance, including willingness to accept non-guarantee elements in the annuity
• financial resources to fund the annuity
financial products, including investment, annuity, and insurance holdings
• tax status
include financial concerns such
profile information deemed relevant to an annuity recommendation may
, the health of the applicant, any anticipated need to access the contract s
Other consumer
the integrity of the Social Security system
surrender charge period ends, and how the applicant feels about annuitization.
as
funds before the
theme that runs throughout the model:
The key point of this provision of the 2020 NAIC regulation underscores a common
annuity recommendation can meet the consumer's best interest only if the producer takes the time toi properly asses
, needs, and objectives. This profile information is best gathered as part of a formal fact-finding
an
the client's current situation
process.
Basis for Product
Using the consumer's profile information as a foundation, the producer must then evaluate the product factors that are
relevant to address the client's financial situation, insurance needs, and financial objectives. These factors would include,
and rates; product features, benefits, and limitations; and the insurer s financial standing.
or more features of
for example, product costs
Ultimately, the producer must have a reasonable basis to believe the consumer would benefit from one
deferral, annuitization, death or living benefits, or other insurance-related features.
the annuity, such as tax
In Whole and in Part
The producer must believe that, as a whole, a
any available riders and enhancements. If the recommended product is a which funds will be allocated when the annuity is purchased must also address the consumer s
and objectives at the time the product is recommended or sold.
best interest, as would
recommended annuity would be in the consumer's
variable annuity, the underlying subaccounts to
financial situation, needs,
Analysis Limited to Products Producer Is Licensed to Sell
The obligation to evaluate and assess product features does not extend beyond the types of products the producer is
recommend. In other words, a producer does not have to analyze or consider any
strategies available in the market. A
authorized and licensed to sell or
products outside his or her authority and license, nor other possible alternatives or
producer will be held to standards applicable to those with similar authority and licensure.
What the Care Obligation Does Not Require
Meeting the care obligation is a critical responsibility under the consumer
important to understand what the care obligation does not require:
• It does not require that an annuity with the lowest one-time or
necessarily be recommended.
best interest standard. However, it is just as
multiple occurrence compensation structure
obligations (unless this obligation is owed separately
• It does not require the producer to assume ongoing monitoring
under the terms of an advisory or consulting agreement with the consumer).
significance be given to every factor involved in a product analysis; the
the facts and circumstances of a particular case (though no
• It does not require that the same importance or
level of importance of each factor may vary depending on
factor can be considered in isolation).
. The NAIC model establishes only
fiduciary obligation or relationship with the consumer,
• It does not require or create a
a regulatory obligation.
• It does not require a producer to have or
authority to sell, solicit, or negotiate insurance in his or her state
engage in any activity that does, in fact, require another professional license).
obtain any license other than a producer license with the appropriate line of
(provided the producer does not give advice, provide
services, or
Meeting the Disclosure Obligation
Disclosure
Meefing the best interest standard requires a producer to make certain disclosures prior to an annuity -ommendadon or
to help consumers better understand a recommended annuity product and the sales
sale. The intent of these disclosures is
transaction, thereby encouraging informed buying decisions.
writing and must be acknowledged with the consumer's signature. They include:
These disclosures must be presented in
description of the scope and terms of the
affirmative statement as to whether the producer is
relationship with the consumer and the producer's role in the transaction
is licensed and authorized to sell the following products:
• a
• an
o fixed annuities o fixed indexed annuities
o variable annuities
o life insurance
o mutual funds
o stocks and bonds
o certificates of deposit
The statement must note that a separate license is
statement describing the insurers for which the producer is authorized or appointed to sell insurance
is required to provide advice about or sell non-insurance products. An
affirmative
products using the following parameters:
o from one insurer
o from two or more insurers
O from two or more insurers, although primarily contracted with one insurer
description of the sources and types of cash and non-cash compensation the producer will receive for the sale of a
recommended annuity:
o by commission as part of premium or other compensation received from the insurer or
O by fee as a result of an advisory or consulting contract
. notice of the consumer's right to request additional information regarding cash compensation
the amount as well as whether the compensation is a one
• a
, including an estimate of
-time or multi-occurrence amount
^ TnAIC has developed a Producer Disclosure Form that is designed to Identify and guide the disclosures the producer is obliged " to make. A copy of this form is reproduced in Appendix A.
Specific Product Disclosures
The NAIC model specifies that a consumer must have been given information about specific elements of a recommended
annuity. Before or at the time of the recommendation or sale, the producer must have a reasonable basis to believe that
the consumer has been informed of:
• the potential surrender period and surrender charges
• the potential tax penalty if the consumer
• mortality and expense fees
• investment advisory fees and any annual fees
sells, exchanges, surrenders, or annuitizes the annuity
. potential charges for and features of riders or other options the annuity offers
-guaranteed elements of the annuity (including premiums, credited interest rates,
• potential charges in any non
bonuses, dividends, and other features that are subject to the insurer's discretion)
• limitations on interest returns
• insurance and investment components
• market risk
Disclosure of Conflicts of Interest
a recommended annuity product and the sales transaction, producers must also
financial interest that could
In addition to specific disclosures about
material conflict of interest, notably those related to an ownership interest ora
producer should avoid such conflicts; however, if they can t be
disclose any
influence the impartiality of a recommendation. Ideally, the avoided, they must be identified, disclosed, and managed.
Meeting the Documentation
in writing, certain key aspects of an
Meeting the best interest requirement also requires the producer to document,
recommendation or sale, the producer must.
annuity recommendation or sale. Specifically, prior to a
her recommendation and the basis for the recommendation
• make a written record of his or
's refusal to provide consumer profile
. obtain a signed statement from the consumer documenting the consumers
information (if that is the case) and the consumer's understanding of the consequences of not providing this
of a form developed by the NAIC for this purpose is
protections if the consumer signs the form.)
information or providing insufficient information (A copy
reproduced in Appendix B. Clearly noted is the potential loss of consumer
acknowledging that any annuity purchase he or she makes that is not
• obtain a signed statement from the consumer
recommended by the producer is not, in fact, a recommended transaction, which then releases the producer from further obligation (See the NAIC form in Appendix C.)
Treatment of Replacements
not limited to new annuity sales or transactions; it also applies to replacements. A
annuity is to be purchased and it is known (or should be known) to the
existing annuity (or life insurance policy) will be:
Applying the best interest standard is
replacement is a transaction in which a new
proposing producer or proposing insurer that an
partially surrendered, assigned to the replacing insurer, or otherwise terminated
otherwise reduced in value,
• lapsed, forfeited, fully or
. converted to reduced paid-up insurance, continued as extended term insurance, or
benefits, or length of coverage • reissued with any reduction in cash value
• used in a financed purchase
Replacement Factors to Consider
In these cases, the replacing producer must
situation or meet the consumer's insurance needs
must consider the following:
• whether the consumer will incur a
• whether the consumer will lose any existing benefits (such as a
benefits)
• whether the consumer would
product enhancements or i
. whether the consumer has had another annuity exchange or replacement, in months
consider whether the transaction would advance the consumer's financial
and financial objectives. In making that determination, the producer
surrender charge or will be subject to a new surrender period
death benefit, living benefit, or other contractual
substantially benefit from the replaced product over the life of the product from any
improvements and whether there are increased fees for these
particular within the preceding 60

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