Department of Labor’s Proposal to Define “Investment Advice”

On April 14, 2015, the US Department of Labor (DOL or Department) published a proposed regulation re-defining the meaning of investment advice for purposes of the Employee Retirement Income Security Act of 1974, as amended (ERISA) and the Internal Revenue Code of 1986, as amended (Code). If adopted in its current form, the Department’s proposed rulemaking will have a significant impact on how providers of investment products and services to individual retirement accounts (IRAs) conduct their businesses.

Effectively, the Department intends to use the proposed definition of investment advice, addition of a best interest contract exemption, and changes to current exemptions (collectively, the Proposal or 2015 Proposed Regulation) to more substantially extend its authority over IRAs and other plans as defined under Code section 4975(e)(1) that are not subject to the fiduciary duty provisions under ERISA section 404(a) or the prohibited transaction provisions under ERISA section 406. As a result, virtually all sales and marketing activities in connection with IRAs will be investment advice and subject to the prohibited transaction provisions. The purpose of this article is to explain how the Department proposes to accomplish this. Please see the attached article for further information.