A financial adviser must not advertise a financial adviser service in a way that is misleading, deceptive or confusing. This is in addition to the general requirement that a financial adviser's conduct in providing a service must not be misleading or deceptive (See sections 35 and 34 of the Financial Advisers Act (FAA).
If you’re a financial adviser, the fair dealing provisions of the FMC Act will apply to you. These are in addition to your obligations under the FAA.
These general obligations apply to all financial advisers including RFAs. As well as traditional forms of advertising (e.g. radio, press, TV advertisements), advisers also need to consider whether messages on websites, business cards, signage and other communications might be seen as an advertisement. This will depend on the particular wording involved and message conveyed.
There is no prohibition in the FAA against advisers using the term registered financial adviser or RFA. FMA uses the term and its acronym to distinguish between the different types of advisers and the Disclosure Regulations require RFAs to tell clients they are 'a registered but not an authorised financial adviser'. Referring to these distinctions helps clients understand the type of adviser they are dealing with and the types of services the adviser is permitted to provide.
However, advisers should not imply that being a registered financial adviser means FMA has licensed, approved or endorsed that adviser. To make or imply these connections could be misleading and confusing for clients.
Advisers should also take care in the way they use the designation RFA, so they do not imply that RFA status is a professional qualification or that it has any minimum competence requirements attached to it. To make or imply these connections could also be misleading and confusing for clients.
A mortgage advice advertisement that refers to KiwiSaver in such a way that it implies an adviser is authorised to provide personalised financial advice on KiwiSaver could be misleading for consumers.
In some circumstances mortgage advisers may need to draw a client's attention to the first home deposit facility within KiwiSaver and provide practical information about accessing the facility. However, advisers should take care in the use of statements and advertisements such as 'come and talk to us about KiwiSaver' or 'use your KiwiSaver to buy your first home'.
A client might think that the mortgage adviser could provide them with personalised advice about the merits of using KiwiSaver funds to buy a house. Under the Act, as a general rule, only an AFA (or QFE adviser) should provide this kind of personalised advice.
In an advertisement for mortgage advice services, FMA would not expect KiwiSaver to be the prominent focus or a key feature of the advertised service. If an adviser is only providing a limited service rather than personalised advice on KiwiSaver we would expect this to be clear.
A mortgage adviser should also be careful when drawing their client's attention to the first home deposit facility other than in advertising. A recommendation to an individual to make use of the facility to buy a first home could amount to personalised advice on a Category 1 product.
AFAs have additional obligations relating to advertising. Under AFA Standard Condition 7 AFAs must not at any time state or imply FMA has endorsed or approved the AFA's business, advice, or solvency, or any other agreements or business arrangements.
However this does not prevent AFAs from factually disclosing or otherwise representing they are an AFA. E.g. AFAs can display their AFA certificate on an office wall or website or state on business cards that they are an AFA.
AFAs must also state on advertisements for financial adviser services that a disclosure statement is available on request and free of charge. (See section 30 of the FAA and the definition of advertisement at section 5).
QFEs also have additional obligations relating to advertising.
Under QFE Standard Condition 5, QFEs must not at any time state or imply FMA has endorsed or approved the AFA's business, advice, or solvency, or any other agreements or business arrangements. However QFEs can factually disclose or otherwise represent that they are a QFE.
QFEs also need to ensure their QFE advisers do not use that term in a way that is misleading. This could include, for example, representations that the QFE adviser is licensed or approved by FMA or that the QFE adviser is permitted to provide services that are not within the remit of the QFE's grant of status.