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January 4, 2023
In the last year, the FCA announced their intention to set clearer standards of consumer protection, to put consumers’ needs first. This came in the form of the much-discussed FCA Consumer Duty Principle, with the power to impact the financial services industry at large.
This was triggered by concerns that certain firms were employing harmful practices and that an update to the consumer duty rules was needed. In the FCA’s own words,
“Our new Duty sets higher and clearer standards of consumer protection across financial services, and requires firms to put their customers’ needs first .”
So, what were firms doing so badly? According to the FCA (otherwise fondly known as the financial conduct authority), there were several sins being committed including “firms presenting information in a way that exploited consumers’ behavioural biases, selling products or services that were not fit for purpose, or providing poor customer support”.
And so, over the past 12 months or so, the financial conduct authority set about conducting consultations and amending the rules to help firms avoid the naughty list. And voila, the all-new Consumer Duty Principle was born.
Firms will now need to officially consider their end users at every stage of the development and distribution journey – from advisers, to distributors, to investment managers and banks. You name it – every firm that has a part to play in the process of creating and providing financial services is on the hook. The message? It’s all about working together, both internally to ensure the firm’s culture is aligned, but also externally with outsourced partners, third party suppliers and more, to harvest “good vibes only” for consumers.
The first question firms will be asking themselves is, “am I caught?” And, the answer is clear. If you are trying to find ways to escape the clutches of the FCA Consumer Duty Principle, you’re in trouble.
Taking it back to basics, the new rules introduce the following:
Those “outcomes” relate to:
Overall, the aim is to cover the entire industry in one sweeping set of regulations that encourage an internal business culture that puts the consumer first.
The ‘deadlines’ for compliance provided by the FCA are looming – but don’t worry. Just demonstrating that your business is aware of the new duty and taking steps to make necessary changes (if needed) shows a willingness to comply.
If it’s dates you want, then the following timeline might help you visualise where you should be when it comes to the implementation plan:
The beady-eyed amongst you will have noticed that we have already passed stages 1 and 2. Firms should be between stages 2 and 3 – essentially, you need to have internally acknowledged and agreed implementation plans for the consumer duty. This means reaching out to a lawyer, checking in with the compliance team (or hiring a consultant to that effect) and making sure your contracts, processes and policies are up to scratch.
Given that the consumer duty rules are principles-based, it is assumed that there will be some flexibility to the industry. The consequence of this is that firms won’t be able to confirm anything more prescribed with the FCA for their individual business – the rules apply to all organisations and key players equally. As a knock-on effect, this means that the rules shouldn’t need to be constantly changed and updated over time, as the way they impact and interact with firms is not too specific and can’t exclude innovating products.
These future-proofed principles are not however, simply a “tick box” exercise. There will be quite a lot for firms to consider and decide for themselves (some of which lawyers can assist with).
Essentially, it’s now up to firms to deliver on the FCA’s expectations – there won’t be any holding of hands by the FCA beyond the rules and the guidance already provided.
Our recommendation is to look at the entire ecosystem for your product or service, because you’re going to need to work with everyone in your distribution chain to reach consensus on how you’ll ensure that the products and services you’re creating and distributing are fit for purpose.
Find your relevant industry body. They’re likely already thinking about these rules for your industry sector and will be a good place for mediated discussions to take place between all the stakeholders.
As part of the implementation process, you may want to consider reviewing your legal documents – this includes both your B2B and B2C contracts , including supplier terms and customer/end user terms and conditions.
You should also check any internal policies and procedures you have in place that could impact on consumers, for example anti bribery and anti-money laundering policies. You might even consider hiring an independent non-executive director for the role and title of Consumer Duty Champion . Although this is not a mandated requirement of the new rules, it may assist in ensuring compliance, and the CDC can act as a go-to for internal questions or complaints regarding consumer duty matters.
Alongside providing your staff with training on the new updates, and how they can help to ensure compliance, we’ve pulled together a few key things to watch out for in your legals:
Is it always clear and easy to understand? Do you use unnecessary jargon (or a cheeky Latin phrase or two)? Think about the literacy of your customers – are you bombarding them with terrible terms and conditions? End users should be able to understand what they are signing up to, what their rights are, and what is expected of them in return.
Are you working with vulnerable customers? These aren’t just the elderly. They may also be people who are temporarily vulnerable – i.e. those going through a divorce, or who have recently suffered a bereavement. They may have a gambling addiction or have recently lost their life savings to a financial scam.
Consider the literacy of these parties and whether your contracts align with the “consumer understanding” principle.
Are you overloading your customers with chunky paragraphs where they can’t see the wood for the trees? Take a step back, cut down the unnecessary fluff and lay out each point clearly.
If you’re not out there to give tax advice, say so, and put it in bold and underlined . Are they automatically agreeing to variations of the agreement? Signpost it!
Where you mention other contracts, documents, policies or third parties, pop in a hyperlink to the relevant webpage or contact – make it as easy as possible for the customer to find out more. Don’t conceal information – take away the obstacles and comply with the “consumer support” principle.
There are also certain back-end (and non legal) things that your business should take the time to review and improve as necessary. This might include things like business continuity commitments, service level agreements and ensuring clear communications channels are in place for consumers to get support from. Take the time to consider your customers at all stages in the product development and distribution chain, and you’ll be golden.
So, to sum up:
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