```
[Federal Register: August 23, 2006 (Volume 71, Number 163)]
[Proposed Rules]
[Page 49387-49391]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23au06-25]

=======================================================================
-----------------------------------------------------------------------

COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 4

RIN 3038-AC35


Advertising by Commodity Pool Operators, Commodity Trading
Advisors, and the Principals Thereof

AGENCY: Commodity Futures Trading Commission.

ACTION: Proposed rules.

-----------------------------------------------------------------------

SUMMARY: The Commodity Futures Trading Commission (Commission or CFTC)
is proposing to amend Regulation 4.41, which governs advertising by
commodity pool operators (CPOs), commodity trading advisors (CTAs) and
the principals thereof, (1) To restrict the use of testimonials, (2) to
clarify the required placement of the prescribed simulated or
hypothetical performance disclaimer, and (3) to include within the
regulation's coverage advertisement through electronic media
(Proposal). This action is in furtherance of the Commission's
longstanding position that CPOs, CTAs, and their principals may not
advertise in a false, deceptive or misleading manner.

DATES: Comments must be received on or before September 22, 2006.

ADDRESSES: Comments on the Proposal should be sent to Eileen Donovan,
Acting Secretary, Commodity Futures Trading Commission, Three Lafayette
Centre, 1155 21st Street, NW., Washington, DC 20581. Comments may be
sent by facsimile transmission to (202) 418-5528, or by e-mail to

[[Page 49388]]
[email protected]. Reference should be made to "Advertising by
Commodity Pool Operators, Commodity Trading Advisors, and the
Principals Thereof." Comments may also be submitted by connecting to
the Federal eRulemaking Portal at http://www.regulations.gov/ and
following the comment submission instructions.

FOR FURTHER INFORMATION CONTACT: Barbara S. Gold, Associate Director,
or Peter B. Sanchez, Staff Attorney, Division of Clearing and
Intermediary Oversight, Commodity Futures Trading Commission, Three
Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581,
telephone number: (202) 418-5450 or (202) 418-5237, respectively;
facsimile number: (202) 418-5528; and electronic mail: [email protected]
or [email protected], respectively.

SUPPLEMENTARY INFORMATION:

I. Background

    Part 4 of the Commission's regulations governs the operations and
activities of CPOs and CTAs.\1\ In particular, Regulation 4.41 pertains
to advertising by CPOs, CTAs, and the principals \2\ thereof, an issue
first addressed by the Commission over 25 years ago. The Commission
originally proposed that CPOs, CTAs, and their principals could not
advertise their actual past performance results in a format other than
that which the CPO or CTA was required to use in its Disclosure
Document,\3\ and that the presentation of simulated or hypothetical
performance of a CPO, CTA, or the principals thereof would be
prohibited.\4\ In response to the comments received and its further
deliberations on these proposals, the Commission adopted less
restrictive advertising regulations.\5\
---------------------------------------------------------------------------

    \1\ 17 CFR Part 4 (2006). The Commodity Exchange Act (Act) and
the Commission's regulations issued thereunder may be accessed
through the Commission's Web site, at http://www.cftc.gov/cftc.cftclawreg.htm.

    \2\ The definition of the term "principal" is set forth in
Regulation 4.10(e)(1), which cross-references the definition of the
term in Regulation 3.1(a). An example of a principal of a CPO
organized as a corporation would be the corporation's chief
executive officer.
    \3\ Regulations 4.21-4.26 and 4.31-4.26 respectively concern the
Disclosure Document that registered CPOs and CTAs must prepare,
deliver, and file.
    \4\ 45 FR 51600 (Aug. 4, 1980).
    \5\ 46 FR 26004 (May 8, 1981).
---------------------------------------------------------------------------

    With respect to the presentation of actual past performance, the
Commission explained that it had adopted in Regulation 4.41(a) "a rule
that leaves to the discretion of the [CPO, CTA, or principal]
advertising performance results--whether actual, simulated or
hypothetical--the format of that presentation, so long as that format
is not false, misleading or deceptive." \6\ As for the presentation of
simulated or hypothetical performance results, the Commission explained
that it had adopted in Regulation 4.41(b) "a rule that allows the
presentation of those results, provided that the presentation is
accompanied by the statement prescribed in the rule (emphasis
supplied)," whose purpose was "to alert prospective customers to the
limitations inherent in simulated and hypothetical past performance
results." \7\ The Commission also noted the scope of new Regulation
4.41--that it applied to both oral and written communications and
regardless of whether a CPO or a CTA was exempt from registration under
the Act.\8\
---------------------------------------------------------------------------

    \6\ While acknowledging that it was not possible to identify
every advertisement that was prohibited by new Regulation 4.41, the
Commission nonetheless gave notice in the Federal Register release
announcing the adoption of the rule that it would consider the
following, non-exclusive list of advertisements, to be prohibited:
    (1) References only to successful trades, if during the same
time period, trades which were unsuccessful were also recommended or
executed; (2) references to the results during a specific time
period, if the results claimed were not fairly representative of
results achieved for comparable periods; (3) suggestions, assurances
or claims of profit potential that do not also fairly present the
possibility of loss; (4) statements of opinions or predictions which
are not clearly labeled as such or which have no reasonable basis in
fact; and (5) failure to disclose whether, and to what extent, fees,
commissions and other expenses are reflected in the past performance
results. Id. at 26012.
    \7\ Id.
    \8\ Section 4m(1) of the Act, 7 U.S.C. 6m(1) (2000), generally
requires the registration of CPOs and CTAs. Regulation 4.13 provides
an exemption from CPO registration for certain persons, and Sections
4m(1) and 4m(3) and Regulation 4.14 provide an exemption from CTA
registration for certain other persons.
---------------------------------------------------------------------------

    Based on its experience with the operation of Regulation 4.41 over
the course of the past 25 years, the Commission today is proposing
certain amendments as described below.

II. The Proposal

A. Presentation of Actual Past Performance: Proposed Addition of
Regulation 4.41(a)(3)

    The Commission is proposing to add a new paragraph (a)(3) to
Regulation 4.41, which would address the use of testimonials by a CPO,
CTA, or a principal thereof. Proposed Regulation 4.41(a)(3) would
require advertisements that refer to a testimonial to prominently
disclose that the testimonial may not be representative of the
experience of other clients; that the testimonial is no guarantee of
future performance or success; and, if more than a nominal sum is paid,
the fact that it is a paid testimonial.\9\ The

[[Page 49389]]

Commission believes that advertisements that do not contain this
information may provide potential CPO and CTA customers with a
misleading assessment about the quality of services being offered or
the motivation of the person providing the testimonial--and, thus,
violate the Commission's intent that these advertisements not be
"false, misleading or deceptive."
---------------------------------------------------------------------------

    \9\ The Commission has modeled this proposal upon NASD Rule
2210(d)(2), which sets similar limits on the use of testimonials in
advertisements and other marketing materials applicable to NASD
members, as follows:
    (2) Standards Applicable to Advertisements and Sales Literature
    (A) Advertisements or sales literature providing any testimonial
concerning the investment advice or investment performance of a
member or its products must prominently disclose the following:
    (i) The fact that the testimonial may not be representative of
the experience of other clients.
    (ii) The fact that the testimonial is no guarantee of future
performance or success.
    (iii) If more than a nominal sum is paid, the fact that it is a
paid testimonial.
    The potential of testimonials to mislead customers has been
recognized by other Federal regulatory agencies. The Securities and
Exchange Commission (SEC) has promulgated a rule that declares any
use of testimonials in advertising by investment advisers to be "a
fraudulent, deceptive or manipulative act, practice or course of
business within the meaning of the [Investment Advisers] Act [of
1940] (15 U.S.C. 80b-6(4))". 17 CFR 275.206(4)-1(a)(1). In its
release promulgating the rule, the SEC found that "such
advertisements are misleading; by their very nature they emphasize
the comments and activities favorable to the investment adviser and
ignore those which are unfavorable." 26 FR 10548, 10549 (November
9, 1961).
    Testimonials also are subject to the Federal Trade Commission's
(FTC) Guides Concerning Use of Endorsements and Testimonials in
Advertising, which are not limited to a specific industry. 16 CFR
255, http://www.ftc.gov/bcp/guides.endorse.htm. The FTC Guides
provide, for example, that:
    An advertisement employing an endorsement reflecting the
experience of an individual or a group of consumers on a central or
key attribute of the product or service will be interpreted as
representing that the endorser's experience is representative of
what consumers will generally achieve with the advertised product in
actual, albeit variable, conditions of use. Therefore, unless the
advertiser possesses and relies upon adequate substantiation for
this representation, the advertisement should either clearly and
conspicuously disclose what the generally expected performance would
be in the depicted circumstances or clearly and conspicuously
disclose the limited applicability of the endorser's experience to
what consumers may generally expect to achieve. See 16 CFR 255.2(a).
    The FTC Guides are an administrative interpretation of section 5
of the Federal Trade Commission Act, 15 U.S.C. 45(a), which
prohibits "unfair or deceptive acts or practices in or affecting
commerce." See Porter & Dietsch, Inc. v. Federal Trade Comm'n, 605
F.2d 294, 303 (7th Cir. 1979) (sustaining FTC's finding that
advertisements were deceptive where the typical experiences of
consumers did not parallel the experiences reported in
testimonials); Federal Trade Comm'n v. Ken Roberts Company, 276 F.3d
583 (DC Cir. 2001)(FTC's authority to investigate deceptive
advertising extended to, among other things, testimonials used by
seller of courses in commodities and securities investing and was
not clearly preempted by overlapping authority of CFTC or SEC).
Standards for establishing unlawful deception under the Federal
Trade Commission Act are broadly similar to those for establishing
unlawful deception by commodity trading advisors and commodity pool
operators under the Commodity Exchange Act. Compare Federal Trade
Comm'n v. Tashman, 318 F.3d 1273, 1275-77 (11th Cir. 2003)
(unsupported earnings claims by business opportunity firm were
material misleading representations that violated Federal Trade
Commission Act) with CFTC v. Heffernan, 245 F. Supp. 2d 1276, 1290-
91, 1294-96 (S.D.Ga. 2003)(unsupported earnings claims by commodity
trading advisor were material misleading representations that
violated Commodity Exchange Act if they were made with scienter or
had an impact on prospective customers).
---------------------------------------------------------------------------

B. Simulated or Hypothetical Performance Presentation: Proposed
Amendments to Regulation 4.41(b)

    Regulation 4.41(b)(1) requires that simulated or hypothetical
performance results "be accompanied by" a prescribed statement,\10\
and Regulation 4.41(b)(2) requires that this statement be "prominently
disclosed" if that performance is presented other than orally.
Nonetheless, the Commission has encountered numerous instances where
persons were not adequately identifying their trading results as
simulated or hypothetical,\11\ or were not appropriately locating the
disclaimer,\12\ and thus were not providing those results as the
Commission had contemplated--i.e., in a manner intended "to alert
prospective customers to the limitations inherent in simulated and
hypothetical past performance results." The Commission therefore is
proposing to amend Regulation 4.41(b)(1) to clarify the meaning of the
term "accompanied by," especially in light of the popularity of
electronic means of communication that were not in existence 25 years
ago when the Commission adopted Regulation 4.41.
---------------------------------------------------------------------------

    \10\ This statement may be the text contained in Regulation
4.41(b)(1)(i) or it may be a statement prescribed by a registered
futures association pursuant to Section 17(j) of the Act, 7 U.S.C.
21(j). In this regard, the National Futures Association (NFA) has
adopted a Risk Disclosure Statement, the text of which is contained
in NFA Compliance Rule 2-29(c) and may be accessed at
 href="http://www.nfa.futures.org/nfaManual/manualCompliance.asp#2-29">http://www.nfa.futures.org/nfaManual/manualCompliance.asp#2-29.

    \11\ See, e.g., CFTC v. R&W Technical Servs. Ltd., 205 F.3d 165
(5th Cir. 2000) (hypothetical trading results presented as real
trading results); CFTC v. Skorupskas, 605 F. Supp. 923, 933 (E.D.
Mich. 1985) (performance tables not based on real or actual
trading).
    \12\ See, e.g., CFTC v. Vartuli, 228 F.3d 94 (2d Cir. 2000)
(disclaimer appears on a separate page from the hypothetical trading
results); Heffernan at 1286, 1296-1297, 1299 (disclaimer on a
webpage, but not included in the original advertisement containing
the hypothetical performance); In re Martin, [1999--2000 Transfer
Binder] Comm. Fut. L. Rep. (CCH) ] 28,239 (CFTC Sept. 6, 2000)
(hypothetical performance results on a Web page, but disclaimer on a
separate page accessible by hyperlink).
---------------------------------------------------------------------------

    Specifically, the Commission is proposing to amend Regulation
4.41(b)(1)(i) by including in the prescribed disclaimer references to
"these results" when discussing the simulated or hypothetical
performance results being presented.\13\ Additionally, the Commission
is proposing to amend Regulation 4.41(b)(2) by adding to the existing
requirement that the prescribed disclaimer must be prominently
disclosed, the requirement that the prescribed disclaimer also must be
"in immediate proximity to the simulated or hypothetical performance
being presented." \14\
---------------------------------------------------------------------------

    \13\ The Commission also is proposing a few non-substantive
changes to the prescribed disclaimer. The text of Regulation
4.41(b)(1)(i) would thus read as follows:
    "These results are based on hypothetical or simulated
performance results that have certain inherent limitations. Unlike
the results shown in an actual performance record, these results do
not represent actual trading. Also, because these trades have not
actually been executed, these results may have under- or over-
compensated for the impact, if any, of certain market factors, such
as lack of liquidity. Hypothetical or simulated trading programs in
general are also subject to the fact that they are designed with the
benefit of hindsight. No representation is being made that any
account will or is likely to achieve profits or losses similar to
these being shown."
    \14\ See, e.g. supra note 12 for situations in which the
required disclaimer was not in immediate proximity to the
hypothetical performance.
---------------------------------------------------------------------------

C. The Scope of Regulation 4.41: Proposed Amendment to Regulation
4.41(c)(1)

    As originally adopted by Congress in 1974, the term "commodity
trading advisor" included any person who provided commodity interest
trading advice "either directly or through publications or writings."
\15\ With the subsequent advent of electronic media and the increasing
use of such media by CTAs, in 1982 Congress amended the CTA definition
to include any person providing commodity interest trading advice
"either directly or through publications, writings or electronic
media" (emphasis supplied).\16\ In turn, the Commission amended the
definition of the term "commodity trading advisor" in Regulation
1.3(bb) to conform to the statutory amendment.\17\ CPOs, like CTAs,
typically solicit customers based on their performance results. The
Commission accordingly is proposing to amend Regulation 4.41(c)(1) in
order to clarify that advertisements by "electronic media, or
otherwise, including information provided via internet or e-mail" are
within the scope of Regulation 4.41.
---------------------------------------------------------------------------

    \15\ Pub. L. 93-463, 88 Stat. 1389, Sec. 202 (Oct. 23, 1974).
    \16\ Pub. L. 947-444, 96 Stat. 2294, Sec. 201 (Jan. 11, 1983).
    \17\ 48 FR 35248 (Aug. 3, 1983).
---------------------------------------------------------------------------

    In this regard, the Commission emphasizes that it interprets
Regulation 4.41 in its current form as applying to the presentation of
past performance results by CPOs, CTAs, and their principals made
through electronic media. The Proposal is intended to make this
interpretation explicit.
    The Commission believes that the Proposal is fully consistent with
the First Amendment. False, deceptive or misleading commercial speech--
even of, for example, those CTAs that provide advice on a non-
personalized basis--is not protected by the First Amendment.\18\
Moreover, even where commercial speech is only potentially misleading,
the government can use disclosure requirements to make sure that the
public is not, in fact, misled.\19\
---------------------------------------------------------------------------

    \18\ Indeed, the Commission may constitutionally prohibit the
dissemination of commercial speech that is "false, deceptive, or
misleading." Zauderer v. Office of Disciplinary Counsel, 471 U.S.
626, 638 (1985).
    \19\ See, e.g. Pearson v. Shalala, 164 F.3d 650 (D.C. Cir. 1999)
(disclosure can be required to cure possibility of misleading public
that would not just justify prohibition).
---------------------------------------------------------------------------

III. Related Matters

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) \20\ requires that agencies,
in proposing rules, consider the impact of those rules on small
businesses. The Commission has previously established certain
definitions of "small entities" to be used by the Commission in
evaluating the impact of its rules on such entities in accordance with
the RFA.\21\
---------------------------------------------------------------------------

    \20\ 5 U.S.C. 601 et seq.
    \21\ 47 FR 18618 (April 30, 1982).
---------------------------------------------------------------------------

    With respect to CTAs, the Commission has previously stated that it
would evaluate within the context of a particular rule proposal whether
all or some affected CTAs would be considered to be small entities and,
if so, the economic impact on them of the proposal.\22\ Moreover, the
Commission stated that CPOs would be considered small entities if they
are exempt from registration by virtue of Regulation 4.13(a).\23\ The
Commission does not believe that the proposed amendments to Regulation
4.41 would have a significant impact on affected CTAs, CPOs, and their
principals. This is because the only burden that would be imposed by
the Proposal would be the obligation to comply with the antifraud
provisions of Section 4o of the Act

[[Page 49390]]

when presenting the past performance of CTAs, CPOs, and their
principal--whether by way of actual or hypothetical performance or
through the use of testimonials. Assuming arguendo, however, that
compliance with Section 4o would constitute a significant burden, the
burden is neither new nor additional, because the proposed revisions to
Regulation 4.41 are consistent with the Commission's longstanding
interpretation of Section 4o as applicable to all advertisements by
CTAs, CPOs, and their principals, including advertisements that are
viewed electronically, and that such advertisements must not be false
or misleading.
---------------------------------------------------------------------------

    \22\ Id. at 18620.
    \23\ Id.
---------------------------------------------------------------------------

    Accordingly, the Chairman, on behalf of the Commission, certifies
pursuant to Section 605(b) of the RFA \24\ that the Proposal will not
have a significant economic impact on a substantial number of small
entities. However, the Commission invites the public to comment on this
finding.
---------------------------------------------------------------------------

    \24\ 5 U.S.C. 605(b).
---------------------------------------------------------------------------

B. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) imposes certain
requirements on Federal agencies (including the Commission) in
connection with their conducting or sponsoring any collection of
information as defined by the PRA. The Proposal does not require a new
collection of information on the part of any entities. Accordingly, for
purposes of the PRA, the Commission certifies that the proposed rule
amendments, if promulgated in final form, would not impose any new
reporting or recordkeeping requirements.

C. Cost-Benefit Analysis

    Section 15(a) of the Act \25\ requires the Commission to consider
the costs and benefits of its action before issuing a new regulation
under the Act. By its terms, Section 15(a) does not require the
Commission to quantify the costs and benefits of a new regulation or to
determine whether the benefits of the proposed regulation outweigh its
costs. Rather, Section 15(a) simply requires the Commission to
"consider the costs and benefits" of its action.
---------------------------------------------------------------------------

    \25\ 7 U.S.C. 19(a).
---------------------------------------------------------------------------

    Section 15(a) further specifies that costs and benefits must be
evaluated in light of five broad areas of market and public concern:
protection of market participants and the public; efficiency,
competitiveness, and financial integrity of futures markets; price
discovery; sound risk management practices; and other public interest
considerations. Accordingly, the Commission could in its discretion
give greater weight to any one of the five enumerated areas and could
in its discretion determine that, notwithstanding its costs, a
particular rule was necessary or appropriate to protect the public
interest or to effectuate any of the provisions or to accomplish any of
the purposes of the Act.
    The Commission is considering the costs and benefits of this rule
in light of the specific provisions of Section 15(a) of the Act as
follows:
1. Protection of Market Participants and the Public
    Because the Proposal discusses the use of testimonials and the
placement of the prescribed hypothetical disclaimer, and specifically
includes advertisement via electronic media by CPOs, CTAs, and their
principals, the Proposal should enhance the Commission's ability to
protect market participants and the public.
2. Efficiency and Competition
    The Proposal should have no effect, from the standpoint of imposing
costs or creating benefits, on efficiency or competition.
3. Financial Integrity of Futures Markets and Price Discovery
    The Proposal should have no effect, from the standpoint of imposing
costs or creating benefits, on the financial integrity or price
discovery function of the commodity futures and option markets.
4. Sound Risk Management Practices
    The Proposal should have no effect, from the standpoint of imposing
costs or creating benefits, on the available range of sound risk
management alternatives.
5. Other Public Interest Considerations
    The Proposal should have no effect, from the standpoint of imposing
costs on, and may create public interest benefits to, consumers as a
result of their having more honest information.
    After considering these factors, the Commission has determined to
propose the amendments to Regulation 4.41 discussed above. The
Commission invites public comment on its application of the cost-
benefit provision. Commenters also are invited to submit any data that
they may have quantifying the costs and benefits of the Proposal with
their comment letters.

List of Subjects in 17 CFR Part 1

    Advertising, Brokers, Commodity futures, Commodity pool operators,
Commodity trading advisors, Consumer protection, Reporting and
recordkeeping requirements.

    For the reasons presented above, the Commission proposes to amend
17 CFR part 1 as follows:

PART 1--GENERAL REGULATIONS UNDER THE COMMODITY EXCHANGE ACT

    1. The authority citation for part 1 continues to read as follows:

    Authority: 7 U.S.C. 1a, 2, 5, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g, 6h,
6i, 6j, 6k, 6l, 6m, 6n, 6o, 6p, 7, 7a, 7b, 8, 9, 12, 12a, 12c, 13a,
13a-1, 16, 16a, 19, 21, 23 and 24, as amended by the Commodity
Futures Modernization Act of 2000, Appendix E of Pub. L. 106-554,
114 Stat. 2763 (2000).

    2. Section 4.41 is amended by removing "or" at the end of
paragraph (a)(1), removing the period and adding a semi-colon and
"or" at the end of paragraph (a)(2), adding new paragraph (a)(3), and
revising paragraphs (b)(1)(i), (b)(2) and (c)(1) to read as follows:


Sec.  4.41  Advertising by commodity pool operators, commodity trading
advisors, and the principals thereof.

    (a) * * *
    (3) Refers to any testimonial, unless the advertisement or sales
literature providing the testimonial prominently discloses:
    (i) That the testimonial may not be representative of the
experience of other clients;
    (ii) That the testimonial is no guarantee of future performance or
success; and
    (iii) If, more than a nominal sum is paid, the fact that it is a
paid testimonial.
    (b) * * *
    (1) * * *
    (i) The following statement: "These results are based on
hypothetical or simulated performance results that have certain
inherent limitations. Unlike the results shown in an actual performance
record, these results do not represent actual trading. Also, because
these trades have not actually been executed, these results may have
under-or over-compensated for the impact, if any, of certain market
factors, such as lack of liquidity. Hypothetical or simulated trading
programs in general are also subject to the fact that they are designed
with the benefit of hindsight. No representation is being made that any
account will or is likely to achieve profits or losses similar to these
being shown"; or
* * * * *
    (2) If the presentation of such simulated or hypothetical
performance is other than oral, the prescribed statement must be
prominently disclosed and in immediate proximity

[[Page 49391]]

to the simulated or hypothetical performance being presented.
    (c) * * *
    (1) To any publication, distribution or broadcast of any report,
letter, circular, memorandum, publication, writing, advertisement or
other literature or advice, whether by electronic media or otherwise,
including information provided via internet or e-mail, the texts of
standardized oral presentations and of radio, television, seminar or
similar mass media presentations, and
* * * * *

    Issued in Washington, DC, on August 17, 2006, by the Commission.
Eileen Donovan.
Acting Secretary of the Commission.
[FR Doc. E6-13946 Filed 8-22-06; 8:45 am]

BILLING CODE 6351-01-P
```