The office of General Counsel issued the following informal opinion on September 21, 2001, representing the position of the New York State Insurance Department.

Re: Advertisements of accident and health insurance.

Question Presented:

Are the following items relating to the sale of dental insurance that will be passed on by insurance brokers/consultants to a Benefit/Administrator and/or a potential member subject to prior approval by the Insurance Department?

Conclusion:

No, none of the items identified are subject to prior approval by the Department.

Facts:

The inquirer wishes to know whether the items listed above that were created for its client, a dental insurance company, that will be distributed to its brokers and consultants must be submitted to this Department for approval.

The inquirer did not describe each of the items identified but stated that, "The materials described above are not intended as a solicitation nor do they contain a call to action from the reader. The materials will not be mailed or published." In light of the foregoing facts, do the identified items require prior approval from the Insurance Department.

Analysis:

Insurance Department Regulation 34, N.Y. Comp. R & Regs. tit. 11, Part 215 (et seq.) (1995) governs advertisements of accident and health insurance for the purpose of assuring the truthful and adequate disclosure of all material and relevant information in the advertising of accident and health insurance. N.Y. Comp. R. & Regs. tit. 11, Part 215.3 defines an "advertisement" for the purpose of the Regulation as including:

(2) descriptive literature and sales aids of all kinds issued by an insurer, agent or broker for presentation to members of the insurance buying public, including but not limited to circulars, leaflets, booklets, depictions, illustrations and form letters; and

(3) prepared sales talks, presentations and material for use by agents, brokers and solicitors.

All of the items mentioned in the inquiry would constitute advertisements.

Neither Regulation 34 nor the statutes under which it was promulgated, require the prior approval by the Insurance Department of accident and health insurance advertisements. However, the insurance company must ensure that all advertisements comply with all of the requirements and prohibitions contained therein.

Under N.Y. Comp. R. & Regs. tit. 11, Part 215.17, each insurer is required to maintain a complete file containing every advertisement of its policies which is subject to inspection by the Department. Also, each insurer required to file an annual statement and who is subject to Regulation 34, must file with the Department a certificate of compliance executed by an authorized officer of the insurer stating that the advertisements disseminated during the preceding statement year complied with all provisions of Regulation 34 and the Insurance Law.

Insofar as the inquirer did not provide copies of the items identified, we cannot offer an opinion as to whether they comply with Regulation 34.

For further information you may contact Associate Attorney Barbara A. Kluger at the New York City Office.