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4000 - Advisory Opinions
Whether the Rules Regarding the Use of the FDIC Logo Apply to
Insured Institution Web Sites
November 3, 2000
FDIC--00--10
Marc J. Goldstrom Counsel
Re: Advertising FDIC insurance on Bank Internet Sites
Thank you for your letter to the Dallas Regional Office. The FDIC
logo inquiries in that letter have been forwarded to our office for
review and response. The apologize for the delay in responding.
As we understand from your letter, X offers web design and Internet
banking services to a number of FDIC insured institutions. These
services include providing institutions with transactional Internet
banking pages allowing institution customers to view account balances,
transactions, and statements. These pages include bill payment and cash
management features. Another service that you specifically referenced
is X's portal product. This product is a web page that contains
portals to other sites. Some of the portals are to sites providing news
or information, while other portals are to sites offering products and
services that are not provided by the insured institution. These
products could, but do not necessarily, include nondeposit investment
products ("NDIPs"). Some insured institutions may consider the
portal page to be their home page while others may not.
You have requested an explanation of the rules regarding the use of
the FDIC logo as they apply to insured institution web sites. More
specifically you have asked for the following guidance:
1. An explanation detailing which standard web-based pages and
qualifying Internet-based activities and features require the inclusion
of the FDIC logo on the insured institution's web page.
2. An explanation detailing the types of web pages on an insured
institution's web site that do not necessarily require the FDIC logo
to be displayed.
3. A description of the types of pages in an insured
institution's web site upon which the FDIC logo should not appear.
4. Whether or not the FDIC logo is required on X's
transactional Internet banking pages?
5. Whether the FDIC logo is required on X's portal product?
Background
Part 328 of the FDIC's regulations,
12 CFR 328, governs the use
the official bank sign (FDIC logo) and the official advertising
statement (Member, FDIC). Banks must use the official advertising
statement in an advertisement, unless the type of advertisement is
specifically exempted from the requirement. Banks may, however,
substitute the official bank sign (FDIC logo) or words to the effect
that the bank is "FDIC insured" in place of the official
advertising statement. 12 CFR
328.3(b); 328.3(c)(11). For purposes of this letter only,
references to the official advertising statement shall also apply to
the official bank sign (FDIC logo) and words to the effect that a bank
is "FDIC insured."
The requirements with respect to the official advertising statement
apply only to banks and do not apply to savings associations.
Accordingly, our answers below only apply to banks, except for the
discussion entitled "A description of the types of pages in an
insured institution's web site upon which the official advertising
statement should not appear." This section applies to all insured
institutions.
With the foregoing in mind we have provided the analysis and
specific guidance that you requested.
Analysis
A bank is required to include the official advertising statement in
all of its advertisements unless the advertisement is specifically
exempted from the requirement under section 328.3(c). Thus the
determination as to whether to include the official advertising
statement
{{4-30-01 p.4984.55}}on a particular web page on a bank's
Internet site always involves the following analysis. First, is the web
page an advertisement? Second, if the web page is an advertisement, is
the advertisement specifically exempted from the official advertising
statement requirement under section 328.3(c)?
Bank Web Pages as Advertisements
Part 328 does not define the term "advertisement." In the
absence of a definition in the rule, the FDIC will generally use the
common and ordinary meaning of the
term. 1
Webster's dictionary defines "advertisement" as "[a] notice
designed to attract public attention or
patronage." 2
Similarly Black's Law Dictionary defines "advertising" as
"[t]he action of drawing the public's attention to something in
order to promote its
sale." 3
We believe that in virtually all cases a bank's home page is a
notice designed to attract public attention or patronage and thus is an
advertisement for purposes of part
328. 4
Moreover, any web page that meets this definition is an advertisement
for purposes of part 328. This would generally include most pages
within a bank's web site. Indeed, any page that touts either the bank
itself or one of its products or services is in our view an
advertisement. Conversely, we would not consider a web page that allows
customers to conduct transactions or review statements to be an
advertisement, so long as the page does not contain other information
touting the bank or its product or services.
Exceptions to Official Advertising Statement Requirement
The exceptions to the official advertising statement requirement are
listed in Part 328.3(c) of the FDIC's regulations. 12 CFR 328.3(c).
This subsection lists 20 exceptions to be required use of the official
advertising statement. Many of these sections are not relevant to a
bank Internet site. 5
The exceptions relevant to a bank's web
site 6
are as follows:
--Advertisements not setting forth the name of the insured
bank
--Joint or group advertisements of insured banks and
noninsured institutions
--Advertisements relating to the making of loans by the bank
or loan services
--Advertisements relating to safekeeping box business or
services
--Advertisements relating to trust business or trust
department services
--Advertisements relating to real estate business or services
--Advertisements relating to armored car services
--Advertisements relating to service charges or analysis
charges
--Advertisements relating to securities business
or securities department services
--Advertisements relating to travel business, including
traveler's checks 7
--Advertisements relating to savings banks life insurance.
If a particular page in a bank's Internet site is an advertisement
then it requires inclusion of the official advertising statement unless
it is subject to one of the foregoing exceptions. For example, a web
page providing information on deposit products is an advertisement not
subject to one of the foregoing exceptions. The web page, therefore,
must include the
{{4-30-01 p.4984.56}}official advertising statement.
Conversely, a web page providing information on mortgage loans is an
advertisement that is subject to one of the foregoing exceptions. The
web page, therefore, need not include the official advertising
statement.
Certain web pages may require the official advertising statement
even though they may not relate to a particular product or service. For
example, a web page that only provides general information on the bank
is an advertisement not subject to one of the foregoing exceptions. It
therefore must include the official advertising statement. Similarly,
web pages that only tout products or services not directly related to
insured deposits may require inclusion of the official advertising
statement if they are not subject to one of the exceptions listed
above. For example, a web page that touts twenty-four hour a day
telephone assistance requires the inclusion of the official advertising
statement because it is an advertisement not subject to an exception in
section 328.3(c).
Specific Guidance
An explanation detailing which standard web-based pages and
qualifying Internet-based activities and features require the inclusion
of the official advertising statement on a bank's web page.
In accordance with the foregoing analysis, bank web pages that are
advertisements and not subject to an exception from the requirement
must contain the official advertising statement. The exceptions to the
official advertising statement are discussed above. Also, as we have
already indicated, most pages within a bank's web site are
advertisements because they are notices designed to attract public
attention or patronage. Indeed, any page that touts either the bank
itself or one of its products or services is in our view an
advertisement.
Many bank home pages only contain general information about the
bank. Such home pages will require the official advertising statement.
A home page that contains general information about the bank and
links to other pages containing information about banking products and
services will also require the official advertising statement. Even
though a page may contain a link to a type of advertisement that is
exempt from the requirement, we do not consider the mere presence of
such a link to be an advertisement "relating to" the product
subject to the exemption. For example, a home page may contain general
information about the bank and contain links to certificate of deposit
information, savings account information, checking account information,
credit card information, and mortgage loan information. This home page
should contain the official advertising statement because it is an
advertisement not subject to one of the exemptions listed in section
328.3(c). Even though the home page contains links to loan products and
services, we do not consider the mere presence of such a link to
transform the home page into an advertisement relating to the making of
loans by the bank or loan services.
These principles apply equally to subsidiary pages of a bank's web
site. Pages advertising exclusively deposit products, electronic
banking services, ATMs, or providing general information about the bank
would normally require the official advertising statement. Indeed any
web page advertisement not subject to an exception should contain the
official advertising statement. A mere link to an advertisement that is
subject to an exception does not exempt the page from the official
advertising requirement.
In a web page advertisement containing information about both
insured deposits and NDIPs, the deposit portion of the advertisement
should contain the official advertising statement, provided that the
NDIP information has been adequately segregated. This is discussed more
fully below in the subsection entitled "A description of the types
of pages in an insured institution's web site upon which the official
advertising statement should not appear."
An explanation detailing the types of web pages on a bank's web
site that do not necessarily require the official advertising statement
be displayed.
The official advertising statement is only required on bank web
pages that are advertisements. While most web pages are advertisements,
we do not consider web pages
{{10-31-02 p.4984.57}}that allow customers to conduct
transactions or review statements and do not contain other information
to be advertisements. Such pages do not require inclusion of the
official advertising statement. However, information on a transaction
or statement page that touts the bank or its products or services,
would transform these pages to advertisements. This could trigger the
official advertising statement depending upon whether the type of
product is subject to one of the exceptions to the requirement.
Any web page advertisement that is subject to one of the exceptions
listed in section 328.3(c) need not include the official advertising
statement. This would include pages concerning loan products, trust
services, and safekeeping box services.
As stated above, any web page that only contains general information
about the bank and links to other pages containing information about
banking products and services will not trigger an exception to the
requirement. However, a page containing links and product and service
information could trigger an exception. For example, a home page
contains general information about the bank and links to certificate of
deposit information, savings account information, checking account
information, credit card information, and mortgage loan information.
Underneath each of the links is a sentence or two of product
information (e.g., one-year CD 7% APR, click hear to find out more;
Credit card, no annual fee, low introductory rate, click here to find
out more). The home page does not require the official advertising
statement because it is an advertisement relating to the making of
loans by the bank or loan services. 12 CFR 328.3(c)(12). The fact that
the web page also contains information concerning deposits does not
negate the exception.
This principle also applies to a web page that contains detailed
information about both deposit and loan products. The web page does not
require the official advertising statement because it is an
advertisement relating to the making of loans by the bank or loan
services. 12 CFR 328.3(c)(12). The fact that the web page also contains
information concerning deposits does not negate the exception.
NDIPs are specifically exempt from the official advertising
statement requirement under section 328.3(c)(19). Advertisement of
these products is treated more fully in the next subsection.
A description of the types of pages in an insured institution's web
site upon which the official advertising statement should not appear.
The sale of NDIPs by insured institutions presents the risk that
customers may believe that such products are FDIC insured. Web pages
with detailed information concerning NDIPs should ensure that customers
are clearly and fully informed of the nature and risks associated with
these products. 8
In light of the inherent risk of confusion regarding NDIPs and FDIC
insurance, we believe that it is inappropriate for a web page dedicated
solely to NDIPs to include the official advertising statement.
This admonition does not apply to a web page in which the only
reference to NDIPs is a link to another page providing detailed
information. Also, some insured institution web pages contain
information concerning both deposit product and NDIP information. The
Interagency Statement on
Retail Sales of Nondeposit Investment Products, Financial
Institution Letter 9--94 (February 17, 1994) (the "Interagency
Statement") provides that in advertisements containing information
about both insured deposits and NDIPs, the information concerning the
NDIPs should be clearly segregated from the other information. In a web
page advertisement containing information about both insured deposits
and NDIPs, the deposit portion of the advertisement should contain the
official advertising statement, provided that the product
information has been adequately segregated.
The Interagency Statement predates the pervasive use of the Internet
as an advertising medium by the banking industry. We recognize that in
some cases it may be very difficult
{{10-31-02 p.4984.58}}to effectively segregate product
information on a web page. Moreover, when advertising a single product
with both deposit and NDIP features, such as a sweep account, it may be
impossible to clearly segregate the NDIP information from other
information. On web pages where the NDIP information is not adequately
segregated from the insured deposit information, the official
advertising statement should not be displayed.
Is the official advertising statement required on X's
transactional Internet banking pages?
As we stated above, we do not consider web pages that allow
customers to conduct transactions or review statements and contain no
other information to be advertisements. Thus, the official advertising
statement is not required on such web pages. However, a transactional
web page that also includes information touting either the bank or one
of its products or services would be an advertisement. As an
advertisement it would require the official advertising statement,
unless it was subject to one of the exceptions to the requirement under
section 328.3(c).
Is the official advertising statement required on Xs portal product?
The portal product appears to be a web page designed to contain
general information about the bank and links to other pages with
information about the bank, other merchants and service providers, and
topics of general interest. In most cases this would be an
advertisement, not subject to one of the exceptions listed in section
328.3(c). Thus, it would require the official advertising statement.
Conclusion
I hope this has been responsive to your inquiry. If you have further
questions please contact me at (202) 898--8807 or
mgoldstromfdic.gov.
1A fundamental canon of statutory construction is that, unless
otherwise defined, words will be interpreted as taking their ordinary,
contemporary, common meaning. Perrin v. U.S., 444 U.S. 37,
42 (1979). Go Back to Text
2Webster's II New Riverside University Dictionary 81 (1988). Go Back to Text
3Black's Law Dictionary 55 (7th ed. 1999). Go Back to Text
4The FDIC first expressed this opinion in its proposal to amend
Part 328. 62 FR 6142, 6145 (1997). Go Back to Text
5For example, advertisements by radio which do not exceed
thirty (30) seconds in time is one such exception. 12 CFR
328.3(c)(8). Go Back to Text
6Section 328.3(c)(11) exempts from the requirement
advertisements that contain statements to the effect that the bank is
FDIC insured. While this is clearly relevant to bank web sites, it is
for all intents and purposes a substitute for the official advertising
statement. Thus, for purposes of this opinion letter we have treated it
as a substitute for the official advertising statement (see
"Background") and not as an exception to the requirement. Go Back to Text
7Not including traveler's checks on which the bank issuing the
advertisement is primarily liable. 12 CFR 328.3(c)(19). Go Back to Text
8The Interagency Statement on Retail Sales of Nondeposit
Investment Products, Financial Institution Letter 9--94 (February 17,
1994) provides that advertisements for NDIPs should inform customers
that such products: (1) are not insured by the FDIC; (2) are not
deposits or other obligations of, or guaranteed by, the depository
institution; and (3) are subject to investment risk, including possible
loss of the principal amount invested. Go Back to Text
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