OGC Opinion No. 06-11-05

The Office of General Counsel issued the following opinion on November 6, 2004, representing the position of the New York State Insurance Department.

Re: Viatical Settlement Advertising

Question Presented:

May the advertisement specified below be used in New York State?

Conclusion:

See analysis below.

Facts:

The Department received an inquiry regarding whether a revised advertisement complies with the New York Insurance Law. The Department previously opined in a letter dated September 28, 2006 that the original advertisement was not in compliance with the New York Insurance Law. That advertisement stated in relevant part:

GET CASH FOR YOUR LIFE INSURANCE POLICY.... You may qualify if you are: over the age of 70 or living with an illness.

It was the Department's opinion that the advertisement above referred to viatical settlements and therefore needed to contain certain information in accordance with section 380.7 of N.Y. Comp. Codes R. & Regs. tit. 11 pt. 380 (2006) (Regulation 148). Additionally the letter stated that the company could only make such an advertisement if it was licensed as a viatical settlement company or broker. This opinion was based upon the inclusion of the words "or living with an illness" in the advertisement, which meant that the advertisement was being offered to viators¹. The Department was now asked whether the revised advertisement that was submitted conforms to the New York Insurance Law. The proposed advertisement states in part:

GET CASH FOR YOUR LIFE INSURANCE…. You may qualify if you are: over the age of 70

There are no other changes to your previous advertisement other than the removal of the words "or living with an illness."

Analysis:

The removal of the words, "or living with an illness" seems to change the nature of the advertisement. With the removal of those words, the advertisement no longer makes reference to viatical settlements. Since the new advertisement no longer refers to viatical settlements and provided that the company is not engaged in the business of viatical settlements, the advertisement no longer would violate the Insurance Law. Whether the advertisement otherwise conforms to New York law is not within the province of this Department.

For further information you may contact Principal Attorney Paul A. Zuckerman at the New York City Office.

¹ See N.Y. Ins. Law §7801(b); OGC opinion letter 06-09-28, dated September 28, 2006.