Interpretive Notices

9025 - COMPLIANCE RULE 2-29: USE OF PROMOTIONAL MATERIAL CONTAINING HYPOTHETICAL PERFORMANCE RESULTS

(Board of Directors, February 1, 1996; revised August 29, 1996, January 1, 2020 and March 20, 2020)

INTERPRETIVE NOTICE

Over the years the use of hypothetical performance results has repeatedly produced misleading promotional material. By their very nature, such performance results have certain limitations. For example, hypothetical performance results do not represent actual trading and are generally designed with the benefit of hindsight, which may under- or over-compensate for the impact of certain market factors, including lack of liquidity and price slippage. Furthermore, since hypothetical trading does not involve financial risk, no hypothetical performance results can completely account for the impact of certain factors associated with risk, including the ability of the customer or the advisor to withstand losses or to adhere to a particular trading program in the face of trading losses. Despite these limitations, there have been numerous instances in which Members have attempted to induce customers to place undue reliance on hypothetical results. NFA's Business Conduct Committee has not hesitated to issue charges against Members engaging in such practices and will continue to pay close attention to promotional materials that display hypothetical results.

The use of hypothetical results has been the subject of regulatory scrutiny. In 1981, the Commodity Futures Trading Commission ("CFTC" or "Commission") considered a total ban on the use of such results. Ultimately, the Commission required CPOs and CTAs displaying hypothetical results to display the disclaimer set forth in CFTC Regulation 4.41. The Commission noted at the time that it might well impose sterner measures if the disclaimer proved ineffective at preventing abuses. NFA subsequently required all FCM, IB, CPO or CTA Members and Associates to display Regulation 4.41's disclaimer in any promotional material that contains such results.

In NFA's experience, however, the use of the mandated disclaimer has not prevented recurring abuses in the presentation of hypothetical results. In some instances, Members have touted dramatic hypothetical profits without revealing that their actual performance is much worse. This situation was addressed by an amendment to NFA Compliance Rule 2-29(c)(3) that requires FCM, IB, CPO and CTA Members advertising hypothetical results to disclose their actual results as well, except as provided in NFA Compliance Rule 2-29(c)(6). In other cases, Members have effectively diminished the impact of the disclaimer by over-emphasizing the significance of hypothetical profits. For example, some Members have utilized promotional material that presents hypothetical rates of return in large, bold-face print while the disclaimer can be read only with a magnifying glass. In other advertising pieces the disclaimer is so far removed from the touted hypothetical profits that customers may never find it. There have also been instances in which Members or Associates have attempted to disguise hypothetical performance results by referring to the performance with terms such as "live" or "real-time" results. In many cases, the intention of these ambiguous references are intended to give the appearance that hypothetical performance is actual performance.

Due to the nature and the frequency of the issues noted in the use of hypothetical performance, NFA's Board of Directors previously considered a complete ban on the presentation of hypothetical results in promotional material. However, in considering such a ban, the Board also recognized that the presentation of hypothetical performance results in promotional material may have some limited utility in certain circumstances, for example, where a Member has developed a new trading program for which there are no actual trading results. As a result, the Board decided to continue to allow FCM, IB, CPO and CTA Members and Associates to utilize promotional material containing hypothetical performance results under very stringent restrictions. Hypothetical results will not be allowed, however, for any trading program for which the Member has three months of actual trading results except as provided in Compliance Rule 2-29(c)(6). Any FCM, IB, CPO and CTA Member or Associate utilizing promotional material that includes hypothetical results shall, at a minimum, adhere to the requirements set forth in NFA Compliance Rule 2-29(c), which are described more fully below.

First, any FCM, IB, CPO or CTA Member or Associate utilizing promotional material that presents hypothetical performance results must provide to customers the disclaimer contained in NFA Compliance Rule 2-29(c)(1). This disclaimer addresses the limitations of hypothetical results and of the dangers in placing undue reliance upon them. To prevent the over-emphasis of hypothetical performance results, the disclaimer must be displayed as prominently as the hypothetical results themselves. Generally, this would require that the disclaimer be printed in a type size at least as large as that used for the hypothetical results. Similarly, to avoid circumstances where hypothetical performance results are presented in one section of the promotional material with the disclaimer buried in another, the disclaimer should immediately precede, or follow the hypothetical performance results. Whenever the FCM, IB, CPO or CTA Member or Associate has less than 12 months of actual results, the disclaimer must immediately precede the hypothetical performance results.¹ Furthermore, if the promotional material contains several pages of hypothetical performance results, then the Member or Associate may need to include this disclaimer more than once in the material.

Second, any FCM, IB, CPO or CTA Member or Associate utilizing promotional material that presents hypothetical performance results must also describe in the promotional material all of the material assumptions that were made in preparing the hypothetical results.² At a minimum, the description of material assumptions must cover points such as initial investment amount, reinvestment or distribution of profits, commission charges, management and incentive fees, and a general discussion of how performance was calculated (e.g., based on settlement prices, real time pricing). FCM, IB, CPO or CTA Members must also make all material disclosures necessary to place the hypothetical results in their proper context, which in most instances may go well beyond the prescribed disclaimer. Furthermore, FCM, IB, CPO or CTA Members and Associates must calculate hypothetical performance results in a manner consistent with that required under Part 4 of the CFTC's Regulations.

Third, when any FCM, IB, CPO or CTA Member or Associate utilizes promotional material that contains both hypothetical and actual performance results, the actual results must be presented with at least the same prominence devoted to the hypothetical results. Hypothetical and actual performance results must be appropriately identified, presented separately³, discussed in an equally balanced manner and calculated pursuant to the same rate of return method. Furthermore, the promotional material must not contain any statement that places undue emphasis on the hypothetical performance results, for example, by discounting or downplaying the significance of any actual performance results.

NFA's Board of Directors further notes that the preceding requirements also apply to an FCM, IB, CPO or CTA Member or Associate's use of promotional material containing a composite performance record showing what a multi-advisor managed account or pool could have achieved if the account's or pool's assets had been allocated among particular trading advisors. In the past, Members have referred to these composite performance records as pro forma results; however, NFA's Board of Directors believes the pro forma label is misleading. Although the performance for each individual trading advisor is based upon actual results, the selection of and allocation among trading advisors has been done with the benefit of hindsight and, thus, the composite performance record is hypothetical in nature.

Therefore, in addition to the preceding requirements, FCM, IB, CPO or CTA Members and Associates must appropriately label any composite performance record for a multi-advisor managed account or pool as hypothetical and not pro forma. Additionally, because the composite performance record is hypothetical in nature, FCM, IB, CPO or CTA Members must include a description of all the material assumptions noted above and, in this context, also describe the method used to select and allocate assets among particular trading advisors. Furthermore, any hypothetical composite performance results for multi-advisor accounts must be calculated based on the nominal funding level required to trade with each of the advisor's in the composite as required by NFA Compliance Rule 2-34. The performance should be presented based on the trading level that is the basis for the CTA's trading decisions rather than its customer's cash management practices. Presenting the hypothetical performance of a multi-advisor composite based on the cash investment of a partially funded account is not appropriate. Presenting the effects of partial funding at varying cash investment levels creates a potential to manipulate the hypothetical rates of returns by simply increasing or decreasing the cash funding level. If an FCM, IB, CPO or CTA Member or Associate previously used promotional material containing hypothetical composite performance records for multi-advisor managed accounts or pools and the hypothetical results were substantially higher than the actual results subsequently obtained by the Member or Associate in allocating assets among the multi-advisors, then this fact must be disclosed in the promotional material.

The presentation of hypothetical performance results in promotional material is, of course, subject to all other NFA Requirements. Pursuant to NFA Compliance Rule 2-29 (b)(1) and (2), the ultimate test of any promotional material is whether the overall impact of the material is misleading or is likely to be deceptive. Although NFA has issued this Interpretive Notice, the Board recognizes that it cannot describe every manner in which promotional material containing hypothetical performance results may be misleading. The fact that an NFA Member or Associate has printed the disclaimer required pursuant to NFA Compliance Rule 2-29 and that the promotional material is in facial compliance with this Interpretive Notice does not ensure that the material is not misleading.

Promotional material that contains hypothetical performance results will continue to be carefully scrutinized by NFA staff. Pursuant to NFA Compliance Rule 2-29(f), FCM, IB, CPO or CTA Members and Associates presenting hypothetical results in their promotional material must be able to demonstrate to NFA's satisfaction the validity of the presentation of the results. The greater the emphasis on dramatic hypothetical profits, the greater the Member's burden in demonstrating the validity of the presentation.

Addressing a different concern, the Board of Directors also believes that hindsight analysis may be misleading as applied to the presentation of extracted performance in which an FCM, IB, CPO or CTA Member or Associate selects one component of its overall past trading results to highlight to customers. In order to prevent the misleading use of such results, except in the case of promotional material directed exclusively to QEPs, the use of extracted performance is permitted only when a CPO's or CTA's previous disclosure documents designated the percentage of assets that would be committed toward that particular component of the overall trading program. For example, if the previous disclosure document stated that 25 percent of a fund's assets would be dedicated to trading financial futures contracts, and if 25 percent of the fund's assets were in fact dedicated to trading financial futures contracts, the CPO would be allowed to present the extracted performance of its financial futures trading based on net asset values equal to 25 percent of the fund's total net asset value. Performance may also be extracted from a managed account program run by an FCM or IB if these same requirements are met. In other words, the FCM or IB must have previously prepared and distributed to all customers participating in the trading program a written report or similar document which designated the percentage of assets that would be committed toward a particular component of the overall trading program. Oral representations, or written documents that were not distributed to the customers, are not sufficient. Furthermore, any promotional material referring to extracted results must clearly label those results as such and must disclose in an equally prominent fashion the overall actual trading results from which the extracted results were drawn. Members presenting extracted performance in promotional material directed exclusively to QEPs are not required to satisfy the requirements of this paragraph, provided that such performance information is clearly identified and accompanied by disclosure of material assumptions that were made in preparing the extracted performance that differ from the disclosed features of the offered trading program.

Lastly, the Board of Directors believes that the use of pro forma performance histories can present useful information to customers, particularly when used to show how the past performance of a given FCM, IB, CPO or CTA Member or Associate would have been affected by the commission or fee structure that applies to the commodity interest contracts, commodity pool, or trading program offered, recommended or described by the Member or Associate. Therefore, an FCM, IB, CPO or CTA Member or Associate may use pro forma results to adjust for differences in commissions and fees as long as the pro forma results are not calculated in a misleading manner and the assumptions used to arrive at the pro forma results are clearly disclosed.

¹ This requirement does not apply to promotional material directed exclusively to QEPs.

² For promotional material directed exclusively to QEPs, the Member is required to provide the material assumptions only in those instances where the material assumptions differ from the disclosed features of the offered trading program.

³ For promotional material directed exclusively to QEPs, hypothetical and actual performance may be presented together provided that each is clearly identified as hypothetical or actual performance.