Sec. 44.8. Advertising and disclosure

(a) Each statement of preliminary information delivered to an applicant for a contract pursuant to section 3209 of the Insurance Law must be accompanied or preceded by a description of the market-value adjustment formula, if any, contained in the contract, and by a description of the withdrawal charge formula, if any, contained in the contract.

(1) The description of any market-value adjustment formula should include:

(i) the provisions of the formula, a description of each of the elements of the formula and identification of the source or publication where any data used in the formula may be found;

(ii) a statement of the frequency with which adjustments made in accordance with the formula will be made;

(iii) a statement of the points in time when contract values are available without application of the formula, and for how long they are available on an unadjusted basis;

(iv) a prominent statement that the application of the formula may result in both upward and downward adjustments of cash surrender benefits;

(v) numerical examples of such upward and downward adjustments;

(vi) a prominent statement as to any limited withdrawal charges and the limitation as to the years during which a charge may be made; and

(vii) in case of flexible premium contracts, a statement as to any separate treatment of different premiums as to interest rate guarantee, market-value adjustments, withdrawal charges, specified time intervals, and guaranteed benefit dates.

(2) The description of any withdrawal charge formula should include:

(i) the provisions of the formula, a description of each of the elements of the formula and identification of the source or publication where any data used in the formula may be found;

(ii) a statement of the frequency with which adjustments made in accordance with the formula will be made;

(iii) a statement of the points in time when contract values are available without application of the formula, and for how long they are available on an unadjusted basis; and

(iv) in case of flexible premium contracts, a statement as to any separate treatment of different premiums as to interest rate guarantees, withdrawal charges, specified time intervals, and guaranteed benefit dates.

(b) The annual report required under section 4223(k)(1) of the Insurance Law shall disclose the actual accumulation amount, the applicable withdrawal charge, any market-value adjustment or the method used to derive the market-value adjustment, any policy loans, and the cash surrender value or the method used to derive the cash surrender value from the preceding data. The report should also note whether the withdrawal charge is subject to adjustment and should note that any market-value adjustment may fluctuate and could either increase or decrease the cash value at some future point and different premiums are treated separately.

(c) All advertisements should clearly disclose that any withdrawal charge formula may reduce the actual accumulation amount in accordance with the terms of the contract in determining the cash surrender value and that any market-value adjustment formula may result in an increase or a decrease in cash surrender value in accordance with the terms of the contract.