[Vicki Kramer]

Hi. We have not changed our Privacy procedures in the past few years, so we haven’t needed to provide an annual Privacy Notice to our customer database. Currently, we do not share any info except as permitted by law to service providers and for servicing and processing transactions; therefore, no opt out is needed. Now, we are entering into a Referral Program to market identity theft protection, credit monitoring and resolution services. The marketing campaign communication will be sent to our accountholders and will be co-branded featuring our bank’s logo as the “referrer”. Once the accountholder transitions to purchase a product from the manufacturer, carrier, or entity requiring special licensing, then our bank’s logo will NOT be included. I have two questions, please. 1) Would this be considered Joint Marketing or Nonaffiliates in the Definitions? 2) Would we need to offer an Opt-out? Thanks for your help!

[rcooper]

Vicki – thanks for the question.

Insurance, investments, and credit card prducts are the most common type of joint marketing agreements I’ve seen. I think you need to look closely at the defintion of a “financial product or service” and “financial istitution” (see Reg P for definitions) to determine if the products and the provider qualify as such and therefore for the JMA exception. Then you’d also need to make sure the agreement constitutes a JMA (see below). If you have a joint marketing agreement and are providing information under that you would not be required to provide an opt-out. If you are able to utilize the JMA exception, I think you would need to send a revised privacy policy since you are entering into a new agreement related to new products/services jointly offering that wasn’t previously disclosed (under 1016.13 disclosure prior to sharing under the JMA is required). This Q&A from the FDIC may also be helpful (see section J): https://www.fdic.gov/news/news/press/2001/pr9301a.html#J. J4 discusses the issue of jointly marketing (rather than just handing names over for them to market to your customers) and examples of what that should look like in order to qualify.

12 CFR 1016.13:
(b) Service may include joint marketing. The services a nonaffiliated third party performs for you under paragraph (a) of this section may include marketing of your own products or services or marketing of financial products or services offered pursuant to joint agreements between you and one or more financial institutions.

(c) Definition of joint agreement. For purposes of this section, joint agreement means a written contract pursuant to which you and one or more financial institutions jointly offer, endorse, or sponsor a financial product or service.

…and the agreement must prohibit the third party from disclosing or using the information other than to carry out the purposes for which you disclosed the information under the agreement. (1016.13(a))

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