Title 12—Banks and Banking--Volume 1
PART 328—FDIC OFFICIAL SIGNS, ADVERTISEMENT OF MEMBERSHIP, FALSE ADVERTISING, MISREPRESENTATION OF INSURED STATUS, AND MISUSE OF THE FDIC'S NAME OR LOGO
§ 328.0   Purpose.
Subpart A of this part describes the official signs and advertising statement and prescribes their use by insured depository institutions, as well as other signs to prevent customer confusion in the event non-deposit products are offered by an insured depository institution. Subpart A applies to insured depository institutions, including insured branches of foreign banks, but does not apply to non-insured offices or branches of insured depository institutions located in foreign countries.
§ 328.1   Definitions.
Branch has the same meaning as the term “domestic branch” as set forth under section 3( o ) of the Federal Deposit Insurance Act, 12 U.S.C. 1813( o ).
Corporation means the Federal Deposit Insurance Corporation.
Deposit has the same meaning as set forth under section 3( l ) of the Federal Deposit Insurance Act, 12 U.S.C. 1813( l ).
Digital deposit-taking channel means websites, banking applications, and any other electronic communications method through which an insured depository institution accepts deposits. Hybrid product means a product or service that has both deposit product features and non-deposit product features. A sweep account is an example of a hybrid product.
Insured depository institution has the same meaning as set forth under section 3(c)(2) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(c)(2).
Non-deposit product means any product that is not a “deposit”, including, but not limited to: insurance products, annuities, mutual funds, securities and crypto-assets. For purposes of this definition, credit products and safe deposit boxes are not non-deposit products.
§ 328.2   Official sign.
(a) Design. Except as otherwise provided in this section, the official sign referred to in this part shall be 7” by 3” in size, with black lettering and gold background, and has the following design:
(b) Symbol. The “symbol” of the Corporation, as used in this subpart, shall be that portion of the official sign consisting of “FDIC” and the two lines of smaller type above and below “FDIC.”
(c) Procuring signage. An insured depository institution may procure the official sign from the Corporation for official use at no charge. Information on obtaining the official sign is posted on the FDIC's internet website, https://www.fdic.gov. Alternatively, insured depository institutions may, at their expense, procure from commercial suppliers, signs that vary from the official sign in size, color, or material. Any insured depository institution which has promptly submitted a written request for an official sign to the Corporation shall not be deemed to have violated this subpart by failing to display the official sign, unless the insured depository institution fails to display the official sign after receipt thereof.
(d) Required changes in signage. The Corporation may require any insured depository institution, upon at least thirty (30) days' written notice, to change the wording or color of the official sign in a manner deemed necessary for the protection of depositors or others.
§ 328.3   Signs within institution premises and offering of non-deposit products within institution premises.
(a) Scope. This section governs signage within the premises of insured depository institutions and the offering of non-deposit products within the premises of insured depository institutions.
(b) Display of official sign. Each insured depository institution must continuously, clearly, and conspicuously display the official sign at each place of business where consumers have access to or transact with deposits, including all of its branches (except branches excluded from the scope of this subpart under § 328.0) and other premises in which customers have access to or transact with deposits, in the manner described in this paragraph (b).
(1) Deposits received at teller windows or stations. If insured deposits are usually and normally received at teller windows or stations, the insured depository institution must display the official sign:
(i) At each teller window or station where insured deposits are usually and normally received, in a size of 7″ by 3″ or larger with black lettering on a gold background as described in § 328.2(a); or
(ii) If the insured depository institution does not offer non-deposit products on the premises, at one or more locations visible from the teller windows or stations in a manner that ensures a copy of the official sign is large enough so as to be legible from anywhere in that area.
(2) Deposits received in areas other than teller windows or stations. If insured deposits are usually and normally received in areas of the premises other than teller windows or stations, the insured depository institution must display the official sign in one or more locations in a manner that ensures a copy of the official sign is large enough so as to be legible from anywhere in those areas.
(3) Other locations within the premises. An insured depository institution may display the official sign in locations at the institution other than those required by this section, except for areas where non-deposit products are offered.
(4) Varied signs. An insured depository institution may display signs that vary from the official sign in size, color, or material at any location where display of the official sign is required or permitted under this paragraph. However, any such varied sign that is displayed in locations where display of the official sign is required must not be smaller in size than the official sign, must have the same color for the text and graphics, and includes the same content.
(5) Newly insured institutions. An insured depository institution shall display the official sign as described in this section no later than its twenty-first calendar day of operation as an insured depository institution, unless the institution promptly requested the official sign from the Corporation but did not receive it before that date.
(c) Non-deposit products offered on insured depository institution premises —
(1) Segregated areas. Except as provided in paragraph (c)(3) of this section, if non-deposit products are offered within the premises, those products must be physically segregated from areas where insured deposits are usually and normally accepted. The institution must identify areas where activities related to the sale of non-deposit products occur and clearly delineate and distinguish those areas from the areas where insured deposit-taking activities occur.
(2) Non-deposit signage. At each location within the premises where non-deposit products are offered, an insured depository institution must continuously, clearly, and conspicuously display signage indicating that the non-deposit products: are not insured by the FDIC; are not deposits; and may lose value. Such signage may not be displayed in close proximity to the official sign.
(3) Physical area limitations. In limited situations where physical considerations present challenges to offering non-deposit products in a distinct area, an institution must take prudent and reasonable steps to minimize customer confusion.
(d) Electronic media. Insured depository institutions may use electronic media to display the official sign and non-deposit sign required by this section.
§ 328.4   Signs for automated teller machines and like devices.
(a) Scope. This section governs signage for insured depository institutions' automated teller machines or other remote electronic facilities that receive deposits.
(b) ATMs or like devices that do not offer access to non-deposit products. Except as provided in paragraph (e), an insured depository institution's automated teller machine or like device that receives deposits for an insured depository institution and does not offer access to non-deposit products may comply with the official sign requirement of this section by either:
(1) Displaying the physical official sign as described in § 328.2 on the automated teller machine, subject to paragraph (f); or
(2) Displaying the FDIC official digital sign as described in paragraph (c) of this section.
(c) Display of FDIC official digital sign. An insured depository institution's automated teller machine or like device that receives deposits for an insured depository institution and offers access to non-deposit products must clearly, continuously, and conspicuously display the FDIC official digital sign as described in § 328.5 on its home page or screen and on each transaction page or screen relating to deposits.
(d) Non-deposit signage. An insured depository institution's automated teller machine or like device that receives deposits for an insured depository institution and offers access to non-deposit products must clearly, continuously, and conspicuously display electronic disclosures indicating that such non-deposit products: are not insured by the FDIC; are not deposits; and may lose value. These disclosures must be displayed on each transaction page or screen relating to non-deposit products. Such signage may not be displayed in close proximity to the FDIC official digital sign.
(e) Automated teller machines and like devices placed into service after January 1, 2025. An insured depository institution's automated teller machine or like device that receives deposits for an insured depository institution and does not offer access to non-deposit products, that is placed into service after January 1, 2025 must display the official digital sign as described in paragraph (c) of this section.
(f) Degraded or defaced physical official signs. A physical official sign that is displayed on an insured depository institution's automated teller machine or like device under paragraph (b)(1) that is degraded or defaced would not be displayed “clearly, continuously, and conspicuously” for purposes of paragraph (b)(1) of this section.
§ 328.5   Signs for digital deposit-taking channels.
(a) Scope. This section governs signage for digital deposit-taking channels, including insured depository institutions' websites and web-based or mobile applications that offer the ability to make deposits electronically and provide access to deposits at insured depository institutions.
(b) Design. In general, the “FDIC” in the FDIC official digital sign shall be displayed with a wordmark size of 37.36 × 15.74px, in navy blue (hexadecimal color code #003256), and the “ FDIC-Insured—Backed by the full faith and credit of the U.S. Government” shall be displayed in regular 400 italic (12.8px) and with black (hexadecimal color code #000000) lettering. The entire FDIC official digital sign shall be displayed in Source Sans Pro Web. If the FDIC official digital sign in these colors would be illegible in a digital-taking channel, due to the color of the background, the entire FDIC official digital sign shall be displayed in white (hexadecimal color code #FFFFFF). The official digital sign required by the provisions of this section shall have the following design:
(c) Digital symbol. The “digital symbol” of the Corporation, as used in this subpart, shall be that portion of the FDIC official digital sign consisting of “FDIC” and the one line of smaller type to the right of “FDIC”.
(d) Display of FDIC official digital sign. An insured depository institution must clearly, continuously and conspicuously display the FDIC official digital sign specified in paragraph (b) of this section on its digital deposit-taking channels on the following pages or screens:
(1) Initial or homepage of the website or application;
(2) Landing or login pages; and
(3) Pages where the customer may transact with deposits.
(e) Legibility. The FDIC official digital sign shall be clearly legible across all insured depository institution deposit-taking channels.
(f) Clear and conspicuous placement of FDIC official digital sign. An official digital sign continuously displayed near the top of the relevant page or screen and in close proximity to the insured depository institution's name would be considered clear and conspicuous.
(g) Display of non-deposit signage. (1) Continuous Display of Non-deposit signage. If a digital deposit-taking channel offers both access to deposits at an insured depository institution and non-deposit products, the insured depository institution must clearly and conspicuously display signage indicating that the non-deposit products: are not insured by the FDIC; are not deposits; and may lose value. This signage must be displayed continuously on each page relating to non-deposit products. This non-deposit signage may not be displayed in close proximity to the digital sign required by paragraph (d) of this section.
(2) One-Time Notification for Bank Customers Related to Third-Party Non-deposit Products. If a digital deposit-taking channel offers access to non-deposit products from a non-bank third party's online platform, and a logged-in bank customer attempts to access such non-deposit products, the insured depository institution must provide a one-time per web session notification on the insured depository institution's deposit-taking channel before the customer leaves the insured depository institution's digital deposit-taking channel. The notification must be dismissed by an action of the bank customer before initially accessing the third party's online platform and it must clearly, conspicuously indicate that the third party's non-deposit products: are not insured by the FDIC; are not deposits; and may lose value. Nothing in this paragraph shall be read to limit an insured depository institution's ability to include additional disclosures in the notification that may help prevent consumer confusion, including, for example, that the bank customer is leaving the insured depository institution's website.
(h) Required changes in digital signage. The Corporation may require any insured depository institution, upon at least thirty (30) days' written notice, to change the wording, color or placement of the FDIC official digital sign and other signs for digital deposit-taking channels when it is deemed necessary for the protection of depositors or others or to ensure consistency with this part's requirement.
§ 328.6   Official advertising statement requirements.
(a) Advertisement defined. The term “advertisement,” as used in this subpart, shall mean a commercial message, in any medium, that is designed to attract public attention or patronage to a product or business.
(b) Official advertising statement. The official advertising statement shall be in substance as follows: “Member of the Federal Deposit Insurance Corporation.”
(1) Optional short title and symbol. The short title “Member of FDIC”, “Member FDIC”, “FDIC-Insured”, or a reproduction of the symbol of the Corporation (as described in § 328.2(b)), may be used by insured depository institutions at their option as the official advertising statement.
(2) Size and print. The official advertising statement shall be of such size and print to be clearly legible. If the symbol of the Corporation is used as the official advertising statement, and the symbol must be reduced to such proportions that the two lines of smaller type above and below “FDIC” are indistinct and illegible, those lines of smaller type may be blocked out or dropped.
(c) Use of official advertising statement in advertisements —(1) General requirement. Except as provided in paragraph (d) of this section, each insured depository institution shall include the official advertising statement prescribed in paragraph (b) of this section in all advertisements that either promote deposit products and services or promote non-specific banking products and services offered by the institution. For purposes of this section, an advertisement promotes non-specific banking products and services if it includes the name of the insured depository institution but does not list or describe particular products or services offered by the institution. An example of such an advertisement would be, “Anytown Bank, offering a full range of banking services.”
(2) Foreign depository institutions. When a foreign depository institution has both insured and noninsured U.S. branches, the depository institution must also identify which branches are insured and which branches are not insured in all of its advertisements requiring use of the official advertising statement.
(3) Newly insured institutions. A depository institution shall include the official advertising statement in its advertisements no later than its twenty-first day of operation as an insured depository institution.
(d) Types of advertisements which do not require the official advertising statement. The following types of advertisements do not require use of the official advertising statement:
(1) Statements of condition and reports of condition of an insured depository institution which are required to be published by State or Federal law;
(2) Insured depository institution supplies such as stationery (except when used for circular letters), envelopes, deposit slips, checks, drafts, signature cards, deposit passbooks, certificates of deposit, etc.;
(3) Signs or plates in the insured depository institution offices or attached to the building or buildings in which such offices are located;
(4) Listings in directories;
(5) Advertisements not setting forth the name of the insured depository institution;
(6) Entries in a depository institution directory, provided the name of the insured depository institution is listed on any page in the directory with a symbol or other descriptive matter indicating it is a member of the Federal Deposit Insurance Corporation;
(7) Joint or group advertisements of depository institution services where the names of insured depository institutions and noninsured institutions are listed and form a part of such advertisements;
(8) Advertisements by radio or television, other than display advertisements, which do not exceed thirty (30) seconds in time;
(9) Advertisements which are of the type or character that make it impractical to include the official advertising statement, including, but not limited to, promotional items such as calendars, matchbooks, pens, pencils, and key chains; and
(10) Advertisements which contain a statement to the effect that the depository institution is a member of the Federal Deposit Insurance Corporation, or that the depository institution is insured by the Federal Deposit Insurance Corporation, or that its deposits or depositors are insured by the Federal Deposit Insurance Corporation to at least the standard maximum deposit insurance amount (as defined in § 330.1(o)) for each depositor.
(e) Restrictions on using the official advertising statement when advertising non-deposit products —(1) Non-deposit product advertisements. Except as provided in paragraph (e)(3) of this section, an insured depository institution shall not include the official advertising statement, or any other statement or symbol which implies or suggests the existence of Federal deposit insurance, in any advertisement relating solely to non-deposit products.
(2) Hybrid product advertisements. Except as provided in paragraph (e)(3) of this section, an insured depository institution shall not include the official advertising statement, or any other statement or symbol which implies or suggests the existence of Federal deposit insurance, in any advertisement relating solely to hybrid products.
(3) Mixed advertisements. In advertisements containing information about both insured deposit products and non-deposit products or hybrid products, an insured depository institution shall clearly segregate the official advertising statement or any similar statement from that portion of the advertisement that relates to the non-deposit products.
(f) Official advertising statement in non-English language. The non-English equivalent of the official advertising statement may be used in any advertisement, provided that the translation has had the prior written approval of the Corporation.
§ 328.7   Prohibition against receiving deposits at same teller station or window as noninsured institution.
(a) Prohibition. An insured depository institution may not receive deposits at any teller station or window where any noninsured institution receives deposits or similar liabilities.
(b) Exception. This section does not apply to deposits received at an automated teller machine or other remote electronic facility that receives deposits for an insured depository institution, or to deposits facilitated through a digital deposit-taking channel.
§ 328.8   Policies and procedures.
(a) Policies and Procedures. An insured depository institution must establish and maintain written policies and procedures to achieve compliance with this part. Such policies and procedures must be commensurate with the nature, size, complexity, scope, and potential risk of the deposit-taking activities of the insured depository institution and must include, as appropriate, provisions related to monitoring and evaluating activities of persons that provide deposit-related services to the insured depository institution or offer the insured depository institution's deposit-related products or services to other parties.
(b) Reservation of authority. Nothing in this section shall be construed to limit the FDIC's authority to address violations of this part, the FDIC's authority to interpret the rules in this part, or any other authority the FDIC has pursuant to any other laws or regulations.
§ 328.100   Scope.
This subpart applies to any person who:
(a) Falsely represents, expressly or by implication, that any deposit liability, obligation, certificate, or share is FDIC-insured by using the FDIC's name or logo;
(b) Knowingly misrepresents, expressly or by implication, that any deposit liability, obligation, certificate, or share is insured by the FDIC if such an item is not so insured;
(c) Knowingly misrepresents, expressly or by implication, the extent to which or the manner in which any deposit liability, obligation, certificate, or share is insured by the FDIC, if such an item is not insured to the extent or manner represented; or
(d) Aids or abets another in any of the foregoing listed in paragraphs (a) through (c) of this section.
§ 328.101   Definitions.
For purposes of this subpart:
Advertisement means a commercial message, in any medium, that is designed to attract public attention or patronage to a product, business, or service.
Appropriate Federal Banking Agency has the meaning set forth in section 3(q) of the FDI Act (12 U.S.C. 1813(q)).
Consumer means any current or potential depositor, including natural persons, organizations, corporate entities, and governmental bodies.
Deposit has the same meaning as set forth under section 3(l) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(l).
FDI Act means the Federal Deposit Insurance Act, 12 U.S.C. 1811 et seq.
FDIC means the Federal Deposit Insurance Corporation.
FDIC-Associated Images means the Seal of the FDIC, alone or within the letter C of the term FDIC; the Official Sign and Symbol of the FDIC, as set forth in § 328.2; the FDIC Official Digital Sign and Digital Symbol set forth in § 328.5; the Official Advertising Statement, as set forth in § 328.6; any similar images; and any other signs and symbols that may represent or imply that any deposit, liability, obligation certificate, or share is insured or guaranteed in whole or in part by the FDIC.
FDIC-Associated Terms means the abbreviation “FDIC,” and the following words or phrases: “Federal Deposit Insurance Corporation,” “Federal Deposit,” “Federal Deposit Insurance,” “FDIC-insured,” “FDIC insurance,” “insured by FDIC,” “member FDIC;” any similar words or phrases; or any other terms that may represent or imply that any deposit, liability, obligation certificate, or share is insured or guaranteed by the FDIC.
Federal Banking Agency has the meaning set forth in section 3(z) of the FDI Act, 12 U.S.C. 1813(z).
General Counsel means the General Counsel of the FDIC or his or her designee.
Hybrid Product has the same meaning as set forth under § 328.1.
Institution-Affiliated Party (IAP ) has the same meaning as set forth under section 3(u) of the FDI Act, 12 U.S.C. 1813(u).
Insured Deposit has the same meaning as set forth under section 3(m) of the FDI Act, 12 U.S.C. 1813(m).
Insured Depository Institution has the same meaning as set forth under section 3(c)(2) of the FDI Act, 12 U.S.C. 1813(c)(2).
Non-Deposit Product means any product that is not a “deposit”, including, but not limited to: insurance products, annuities, mutual funds, securities, and crypto-assets. For purposes of this definition, credit products and safe deposit box services are not Non-Deposit Products.
Person means a natural person, sole proprietor, partnership, corporation, unincorporated association, trust, joint venture, pool, syndicate, agency or other entity, association, or organization, including a “Regulated Institution” as defined in this section.
Regulated Institution means any institution for which the FDIC, the Office of the Comptroller of the Currency, or the Board of Governors of the Federal Reserve System is the “appropriate Federal banking agency” under section 3(q) of the FDI Act, 12 U.S.C. 1813(q).
Third-Party Publisher means any party that publishes, places, distributes, or circulates advertising or marketing materials, regardless of the platform or media used for distribution, containing FDIC-Associated Images, FDIC-Associated Terms, or other claims regarding FDIC insurance or guarantees. Third-Party Publishers include, but are not limited to: Publishers and distributors of written, visual, or print advertising; broadcasters of video or audio advertisements; telemarketers; internet or web-based distributors, including internet service providers, and email marketers; and direct mail marketers and distributors.
Uninsured Financial Product means any Non-Deposit Product, Hybrid-Product, investment, security, obligation, certificate, share, crypto-asset or financial product other than an “Insured Deposit” as defined in this section.
§ 328.102   Prohibition.
(a) Use of the FDIC name or logo. (1) No person may represent or imply that any Uninsured Financial Product is insured or guaranteed by the FDIC by using FDIC-Associated Terms as part of any business name or firm name of any person.
(2) No person may represent or imply that any Uninsured Financial Product is insured or guaranteed by the FDIC by using FDIC-Associated Terms or by using FDIC-Associated Images as part of an Advertisement, solicitation, or other publication or dissemination.
(3) This section applies, but is not limited, to:
(i) An Advertisement for any Uninsured Financial Product that features or includes one or more FDIC-Associated Terms or FDIC-Associated Images, without a clear, conspicuous, and prominent disclaimer that the products being offered are not FDIC insured or guaranteed.
(ii) An Advertisement for any Uninsured Financial Product that may be backed or guaranteed by an entity other that the FDIC, but features or includes one or more FDIC-Associated Terms or FDIC-Associated Images, without a clear, conspicuous, prominent, and accurate explanation as to the actual nature and source of the guarantee.
(iii) An Advertisement for any Non-Deposit Product or Hybrid Product by a Regulated Institution that includes any statement or symbol which implies or suggests the existence of deposit insurance relating to the Non-Deposit Product or Hybrid Product.
(iv) Publication or dissemination of information, regardless of the media or platform, that suggests or implies that the party making the representation is an FDIC-insured institution if this is not in fact true.
(v) Publication or dissemination of information, regardless of the media or platform, that suggests or implies that the party making the representation is associated with an FDIC-insured institution if the nature of the association is not clearly, conspicuously, prominently, and accurately described.
(vi) Publication or dissemination of information, regardless of the media or platform, that suggests or implies that the party making the representation is the FDIC or any office, division, or subdivision thereof, if this is not in fact true.
(vii) Publication or dissemination of information, regardless of the media or platform, that suggests or implies that the party making the representation is associated with the FDIC or any office, division, or subdivision thereof, if the nature of the association is not clearly, conspicuously, prominently, and accurately described.
(viii) Use of FDIC-Associated Terms or FDIC-Associated Images, in a manner that inaccurately states or implies that a person other than an insured depository institution is insured by the FDIC.
(b) False or misleading representations regarding FDIC insurance. (1) No person may knowingly make false or misleading representations about deposit insurance, including:
(i) That any deposit liability, obligation, certificate, or share is insured under this subpart if such a deposit is not so insured;
(ii) The extent to which any deposit liability, obligation, certificate, or share is insured under this subpart if such item is not insured to the extent represented; or
(iii) The manner in which any deposit liability, obligation, certificate, or share is insured under this subpart if such item is not insured in the manner represented.
(iv) A person other than an insured depository institution is an FDIC-insured depository institution. This includes use of FDIC-Associated Terms or FDIC-Associated Images, in a manner that inaccurately states or implies that a person other than an insured depository institution is insured by the FDIC.
(2) For the purposes of this section, a statement is deemed to be a statement regarding deposit insurance, if it:
(i) Includes any FDIC-Associated Images or FDIC-Associated Terms;
(ii) Makes any representation, suggestion, or implication about the existence of FDIC insurance or the extent or manner of coverage; or
(iii) Makes any representation, suggestion, or implication about the existence, extent, or effectiveness of any guarantee by FDIC in the event of financial distress by Insured Depository Institutions, whether a specific Insured Depository Institution or Insured Depository Institutions generally, including but not limited to bank failure, insolvency, or receivership of such institutions.
(3) For the purposes of this section, a statement regarding deposit insurance violates this section, if:
(i) The statement contains any material representations which would have the tendency or capacity to mislead a reasonable consumer, regardless of whether any such consumer was actually misled; or
(ii) The statement omits or fails to clearly and conspicuously disclose material information that would be necessary to prevent a reasonable consumer from being misled, regardless of whether any such consumer was actually misled.
(4) Without limitation, a false or misleading representation is deemed to be material if it states, suggests, or implies that:
(i) Uninsured Financial Products are insured or guaranteed by the FDIC;
(ii) Insured Deposits (whether generally or at a particular Regulated Institution) are not insured or guaranteed by the FDIC;
(iii) The amount of deposit insurance coverage is different (whether greater or less) than actually provided under the FDI Act;
(iv) The circumstances under which deposit insurance may be paid are different than actually provided under the FDI Act;
(v) The requirements to qualify for deposit insurance, or the process by which deposit insurance would be paid, are different from what is provided under the FDI Act and its implementing regulations in this chapter, including false or misleading claims related to actions required of consumers to qualify for or obtain such insurance; or
(vi) Regulated Institutions may convert Insured Deposits into another form of liability that is not insured, such as unsecured debt or equity.
(5) Without limitation, a statement regarding deposit insurance will be deemed to omit or fail to clearly and conspicuously disclose material information if the absence of such information could lead a reasonable consumer to believe any of the material misrepresentations set forth in paragraph (b)(4) of this section or could otherwise result in a reasonable consumer being unable to understand the extent or manner of deposit insurance provided. Examples of such material information include, but are not limited to, the following:
(i) A statement made by a person other than an insured depository institution that represents or implies that an advertised product is insured by the FDIC that fails to clearly and conspicuously identify the insured depository institution(s) with which the representing party has a direct or indirect business relationship for the placement of deposits and into which the consumer's deposits may be placed;
(ii) A statement made by a person that is not an insured depository institution regarding deposit insurance that fails to clearly and conspicuously disclose that the person is not an FDIC-insured depository institution and that FDIC insurance only covers the failure of the FDIC-insured depository institution. A statement that a person is not an FDIC-insured bank and deposit insurance covers the failure of an insured bank would be considered a clear statement for purposes of this provision.
(iii) A statement made by a person regarding deposit insurance in a context where deposits and Non-Deposit products are both offered on a website in close proximity, that fails to clearly and conspicuously differentiate between insured deposits and Non-Deposit Products by disclosing that Non-Deposit Products: are not insured by the FDIC; are not deposits; and may lose value, except that:
(A) Services unrelated to financial products or investments and physical goods shall not be considered Non-Deposit Products for purposes of clause (b)(5)(iii) of this section; and
(B) In the case of a Non-Deposit Product that is a product that allows consumers to store, send, or receive fiat money and does not fluctuate in value, failure to disclose that the Non-Deposit Product may lose value will not be a material omission for purposes of clause (b)(5)(iii) of this section.
(iv) A statement made by a person regarding pass-through deposit insurance coverage that fails to clearly and conspicuously disclose that certain conditions must be satisfied for pass-through deposit insurance coverage to apply.
(6) Without limitation, a representation is deemed to have been knowingly made if the person making the representation:
(i) Has made false or misleading representations regarding deposit insurance;
(ii) Has been advised by the FDIC in an advisory letter, as provided in § 328.106(a), or has been advised by another governmental or regulatory authority, including, but not limited to, another Federal banking agency, the Federal Trade Commission, the Bureau of Consumer Financial Protection, the U.S. Department of Justice, or a state bank supervisor, that such representations are false or misleading; and
(iii) Thereafter, continues to make these, or substantially-similar, representations.
§ 328.103   Inquiries and complaints.
Should any person have reason to believe that anyone is or may be acting in violation of section 18(a) of the FDI Act (12 U.S.C. 1828(a)) or this subpart, or have questions regarding the accuracy of deposit-related representations, such individuals may contact the FDIC at the FDIC Information and Support Center, http://ask.fdic.gov/fdicinformationandsupportcenter/s/, or by telephone at 1-877-275-3342 (1-877-ASK-FDIC).
§ 328.104   Investigations of potential violations.
(a) The General Counsel has delegated authority to investigate potential violations of section 18(a) of the FDI Act (12 U.S.C. 1828(a)) and this subpart.
(b) Such investigations will be conducted as prescribed under section 10(c) of the FDI Act (12 U.S.C. 1820(c)) and subpart K of part 308 of this chapter (12 CFR 308.144 through 308.150). Notwithstanding the general confidentiality provisions of 12 CFR 308.147, in cases that may pose a risk of imminent harm to consumers, the FDIC may disclose or confirm the existence of an investigation that does not involve an Insured Depository Institution or a known IAP thereof. Such disclosure must not disclose any information obtained or uncovered during the course of the investigation.
§ 328.105   Referral to appropriate authority.
(a) If, in connection with the receipt of an inquiry or complaint, or during the course of an investigation, informal resolution, or formal enforcement under this subpart:
(1) The FDIC becomes aware of conduct by a Regulated Institution for which another Federal banking agency is the appropriate Federal banking agency or an Institution-Affiliated Party of such an institution, that appears to violate section 18(a) of the FDI Act (12 U.S.C. 1828(a)), the FDIC may recommend that the appropriate Federal banking agency take appropriate enforcement action. If the appropriate Federal banking agency does not take the recommended action within 30 days, the FDIC may pursue any and all remedies available under section 18(a) or the FDI Act (12 U.S.C. 1828(a)) and this subpart;
(2) The FDIC becomes aware of conduct that the FDIC has reason to believe violates a civil law or regulations within the jurisdiction of another regulatory authority, the FDIC may take steps to notify the appropriate authority; and
(3) The FDIC becomes aware of conduct that the FDIC has reason to believe violates 18 U.S.C. 709, the FDIC may notify FDIC's Office of Inspector General for referral to the appropriate criminal law enforcement authority.
(b) To the extent that any records are provided to a regulatory or criminal law enforcement authority, as set forth in paragraph (a) of this section, the provision of such records will be made in accordance with the requirements of part 309 of this chapter. Where such records were obtained during the course of an investigation, informal resolution, or formal enforcement action, the General Counsel will be considered the Director of the FDIC's Division having primary authority over records so obtained.
§ 328.106   Informal resolution.
(a) If the FDIC has reason to believe that any person may be misusing an FDIC-Associated Image or FDIC-Associated Term or otherwise violating § 328.102(a), or may be making false or misleading representations regarding deposit insurance in violation of § 328.102(b), the FDIC may issue an advisory letter to such a person and/or any person who aids or abets another in such conduct, including any Third-Party Publisher. Generally, such an advisory letter will:
(1) Alert the recipient of advisory letter of the basis for the FDIC's concerns;
(2) Request that the person and/or Third-Party Publisher:
(i) Take reasonable steps to prevent any violations of section 18(a) of the FDI Act (12 U.S.C. 1828(a)) and this subpart;
(ii) Commit in writing to refrain from such violations in the future; and
(iii) Notify the FDIC in writing that the identified concerns have been fully addressed and remediated; and
(2) Offer the person or Third-Party Publisher the opportunity to provide additional information, documentation, or justifications to substantiate the representations made or otherwise refute the FDIC's expressed concerns.
(b) Except in cases where the FDIC has reason to believe that consumers or Insured Depository Institutions may suffer harm arising from continued violations, recipients of advisory letters described in paragraph (a) of this section will be provided not less than fifteen (15) days to provide the requested commitment, explanation, or justification.
(c) Where a recipient of an advisory letter described in paragraph (a) of this section provides the FDIC with the requested written commitments within the timeframe specified in the letter, and where any required remediation has been verified by FDIC staff, the FDIC will generally take no further administrative enforcement against such a party under § 328.107.
(d) Where a recipient of an advisory letter described in paragraph (a) of this section fails to respond to the letter, fails to make the requested commitments, or fails to provide additional information, documentation, or justifications that the FDIC, in its discretion, finds adequate to substantiate the representations made or otherwise refute the concerns set forth in the advisory letter, the FDIC may pursue all remedies set forth in this subpart.
(e) Nothing in this section will prevent the FDIC from commencing a formal enforcement action under § 328.107 at any time before or after the issuance of an advisory letter under this section if:
(1) The FDIC has reason to believe that consumers or Insured Depository Institutions may suffer harm arising from continued violations; or
(2) The person to whom such an advisory letter would be sent has previously received a similar advisory letter from the FDIC under paragraph (a) of this section.
§ 328.107   Formal enforcement actions.
(a) Enforcement authority. For the purpose of enforcing the requirements of section 18(a)(4) of the FDI Act (12 U.S.C. 1818(a)(4)) and this subpart, the General Counsel has delegated authority to bring administrative enforcement actions against any person under sections 8(b), (c), (d), and (i) of the FDI Act (12 U.S.C. 1818(b), 1818(c), 1818(d), and 1818(i)). In the case of conduct by a Regulated Institution for which another Federal banking agency is the appropriate Federal banking agency or an institution-affiliated party of such an institution, the General Counsel may not bring an enforcement action under this subpart unless the FDIC has provided the appropriate Federal banking agency with notice as set forth in § 328.105(a)(1) and the appropriate Federal banking agency failed to take the recommended action.
(b) Venue. Unless the person who is the subject of the enforcement action consents to a different location, the venue for an administrative action commenced under section 18(a)(4) of the FDI Act (12 U.S.C. 1818(a)(4)), will be as follows:
(1) In a case where the person who is the subject of the action is an Insured Depository Institution or an IAP of an Insured Depository Institution, in the Federal judicial district or territory in which the home office of the Insured Depository Institution is located.
(2) In a case where the person who is the subject of the action is not an Insured Depository Institution or an IAP of an Insured Depository Institution, the Federal judicial district or territory where the person who is the subject of the action resides, if the subject resides in the United States. If the subject of the action does not reside in the United States, the venue will be where the subject of the action conducts business or the Federal judicial district for the District of Columbia.
(3) For the purposes of paragraph (b)(1) of this section, a natural person is deemed to reside in the Federal judicial district where the natural person is domiciled. A person other than a natural person is deemed to reside in the Federal judicial district where it is headquartered or has its principal place of business.
(c) Rules of practice and procedure. All actions brought and maintained under this section will be subject to the FDIC's Rules of Practice and Procedure in subparts A through C of part 308 of this chapter (12 CFR 308.1 through 308.109).
§ 328.108   Appeals process.
(a) A person who is the subject of a final order issued after an administrative action commenced pursuant to this subpart may obtain judicial review of such order in accordance with the procedures set forth in section 8(h)(2) of the FDI Act (12 U.S.C. 1818(h)(2)).
(b) Petitions for review under this section may be filed in the court of appeals for the circuit where the hearing was held or the United States Court of Appeals for the District of Columbia Circuit.
§ 328.109   Other actions preserved.
No provision of this subpart shall be construed as barring any action otherwise available, under the laws or regulations of the United States or any state, to any Federal or state agency or person.