SECTION 21.103. Required Form and Content of Advertisements

(a) It is required that advertisements be truthful and not misleading either in fact or in implication.

(b) The format and content of an advertisement of a policy must be sufficiently complete and clear to avoid deception or the capacity or tendency to mislead or deceive. Whether an advertisement has a capacity or tendency to mislead or deceive is determined by the department of insurance, or the Commissioner of Insurance on appeal, from the overall impression that the advertisement may be reasonably expected to create upon a person of average education or intelligence within the segment of the public to which it is directed.

(c) All information required to be disclosed by this division will be set out conspicuously and in close conjunction with the statements to which the information relates or with appropriate captions of such prominence that required information is not minimized, rendered obscure, or presented in an ambiguous fashion, or intermingled with the context of the advertisement so as to be confusing or misleading. Regarding Internet advertising, the disclosures required by the sections referenced in paragraphs (1) - (5) of this subsection may be provided through a conspicuous and clearly labeled link, provided that the link must be placed near the relevant information to which it relates, and must connect directly to the information necessary to comply with the applicable requirements:

(1) with respect to "invitation to inquire" advertisements, §21.104(a) of this division (relating to Requirement of Identification of Policy or Insurer);

(2) §21.104(i) of this division if linked to same page satisfying §21.104(a) of this division, as permitted in paragraph (1) of this subsection;

(3) §21.108(c) of this division (relating to Use of Statistics and Citations);

(4) §21.113(b)(2) - (4), (c)(1), (d)(1) and (f) of this division (relating to Rules Pertaining Specifically to Accident and Health Insurance Advertising and Health Maintenance Organization Advertising); and

(5) §21.114(1)(A) of this division (relating to Rules Pertaining Specifically to Life Insurance and Annuity Advertising).

(d) No advertisement may be used which because of words, phrases, statements, or illustrations therein or information omitted therefrom has the capacity and tendency to mislead or deceive purchasers or prospective purchasers. Words or phrases may not be used which are misleading or deceptive because their meaning is not clear, or is clear only to persons familiar with insurance terminology. This section does not prohibit the use of trade or technical terms in advertisements directed exclusively to commercial enterprises familiar with the particular term use.

Source Note: The provisions of this §21.103 adopted to be effective February 1, 1981, 5 TexReg 3336; amended to be effective December 9, 2007, 32 TexReg 8830; amended to be effective February 11, 2009, 34 TexReg 843; amended to be effective September 8, 2010, 35 TexReg 8117