69O-150.208. Testimonials or Endorsements by Third Parties

(1)(a) Testimonials and endorsements used in marketing communications must:

1. Be genuine;

2. Represent the current opinion of the author;

3. Be applicable to the health benefit plan marketed; and,

4. Be accurately reproduced.

(b) The small employer carrier in using a testimonial or endorsement makes as its own all the statements contained therein, and the marketing communication, including the statement, is subject to these rules.

(c) When a testimonial or endorsement is used more than one year after it was originally given, a confirmation must be obtained.

(2) A person shall be deemed a “spokesperson” if the person making the testimonial or endorsement:

(a) Has a financial interest in the small employer carrier or a related entity as a stockholder, director, officer, employee, or otherwise;

(b) Is an entity formed by the small employer carrier, is owned or controlled by the small employer carrier, its employees, or the person or persons who own or control the small employer carrier;

(c) Is in a policy-making position that is affiliated with the small employer carrier in any of the above described capacities; or

(d) Is in any way directly or indirectly compensated for making a testimonial or endorsement.

(3) Any person acting as a spokesperson as defined in the preceding paragraph who performs any of the following acts in a marketing communication shall be considered to be soliciting a health benefit plan, and shall be a licensed insurance agent pursuant to the Florida Insurance Code:

(a) Solicits insurance or procures applications;

(b) Engages or holds himself out as engaging in the business of analyzing or abstracting insurance policies or plans;

(c) Engages in counseling, advising, or giving opinions to persons relative to insurance contracts or plans; or

(d) Performs an invitation to contract, except where performed by a company officer in a manner that does not violate Section 626.112(4), F.S.

(4)(a) The financial interest or proprietary or representative capacity of a spokesperson shall be disclosed in a marketing communication in the introductory portion of the testimonial or endorsement in the same form and with equal prominence.

(b) If a spokesperson is directly or indirectly compensated for making a testimonial, endorsement or appraisal, that fact shall be disclosed by use of the phrase “paid endorsement” or words of similar import in a type style and size that is at least equal to that used for the spokesperson’s name or the body of the testimonial or endorsement, whichever is larger.

(c) In the case of television or radio marketing, the required disclosure shall be in the introductory portion of the marketing communication and must be given prominence. If printed, the disclosure must be presented in a type style and size that is at least equal to the largest type otherwise used in the marketing communication.

(d) The use of the phrase “paid endorsement” is not required where the spokesperson is a company officer who is paid generally, but not specifically for making the marketing communication.

(5) The disclosure requirements of this rule shall not apply where the sole financial interest or compensation of a spokesperson for all testimonials or endorsements made on behalf of the small employer carrier consists of the payment of union scale wages required by union rules, and if the payment is actually for scale for TV or radio performances.

(6) A marketing communication shall not state or imply that a small employer carrier, plan or policy has been approved or endorsed by any individual, group of individuals, society, association, or other organization, governmental agency or other entity, unless that is the fact, and unless any proprietary relationship between an organization and the small employer carrier is disclosed. If the entity making the endorsement or testimonial has been formed by the small employer carrier, or is owned or controlled by the small employer carrier or the person or persons who own or control the small employer carrier, that fact shall be disclosed in the marketing communication.

(7)(a) When a testimonial refers to benefits received under a health benefit plan for a specific claim, the specific claim data, including claim number, date of loss, and other pertinent information shall be retained by the small employer carrier for inspection for a period of four years or until the filing of the next regular report on examination of the small employer carrier, whichever is the longer period of time.

(b) Testimonials that do not correctly reflect the present practices of the small employer carrier or are not applicable to the health benefit plan or benefits being marketed shall not be used.

Rulemaking Authority 624.308(1), 626.9611, 627.6699(12) FS. Law Implemented 624.307(1), 626.062, 626.830, 626.9541(1)(a), (b), (e), (k), (l), 626.9641(1), 627.6699(9)(d)4., 624.307(1) FS. History–New 2-25-93, Formerly 4-150.208.