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Consumer advocates sound alarm over latest delay of investor protection rule

Key Points
  • The Labor Department pushed the effective date for parts of the so-called fiduciary rule to July 1, 2019, from Jan. 1, 2018.
  • Advisors have been required to act in the best interest of clients for their retirement savings since June 9.
  • Advocates say the delay creates the potential for investments to be sold that benefit the advisor instead of the investor.
Rob Daly | Getty Images

Consumer advocates are sounding alarm bells over the Labor Department's latest move in the battle over a controversial investor-protection rule, saying it means retirement savers will remain vulnerable to conflicted advice from some financial advisors.

An amended rule issued by the Labor Department, published in the Federal Register today, delays the effective date of certain provisions in the so-called fiduciary rule by 18 months, to July 1, 2019, from Jan. 1, 2018.

Other parts of the rule, which took effect June 9, place requirements on advisors when it comes to recommending investments and providing advice regarding 401(k) plans and individual retirement accounts. They must provide advice that aligns with clients' best interests, charge reasonable compensation and not make misleading statements.

The remaining delayed provisions articulate what advisors must to do meet those requirements.

DOL rule impact

For instance, it would require those earning commissions on investments in retirement accounts to sign a legally binding agreement putting their clients' interests ahead of their own, and to provide other disclosures related to fees, services and conflicts of interest.

"If advisors are subject to a best-interest standard that isn't enforceable, and if they are still paid in ways that encourage and reward harmful advice, there are going to be abuses and no way for IRA investors to hold firms and advisors accountable," said Barbara Roper, director of investor protection for the Consumer Federation of America.

The fiduciary rule, created under the Obama administration, has been a controversial effort to rein in conflicts of interest when advisors deliver advice to retirement savers. The general target was investments that pay commissions to advisors yet might not be in the best interest of investors.

There's this pretense that retirement savers are being protected, but no assurance that firms will be in compliance.
Barbara Roper
Consumer Federation of America

According to a 2015 study from President Obama's Council of Economic Advisors, conflicted advice was costing consumers about $17 billion in foregone retirement earnings each year. Now, even with the first part of fiduciary rule in effect, the Economic Policy Institute is estimating that the 18-month delay will cost retirement savers an extra $10.9 billion over the next 30 years.

The financial industry has panned the rule as a barrier to retirement information and advice. President Trump directed the Labor Department in February to study the economic impact of the rule. In August, the agency indicated it would pursue a delay for the rule's provisions that had not yet taken effect.

In releasing its 18-month delay, the Labor Department said it will only bring enforcement actions if it sees no good-faith efforts to comply with the best-interest standard.

"There's this pretense that retirement savers are being protected, but no assurance that firms will be in compliance," Roper said.

The delay will help provide certainty to investors and avoid confusion and cost associated with continued piecemeal delays.
Kenneth Bentsen Jr.
President and CEO of SIFMA

Her other concern is that the delay could signal a death knell for the provisions.

"[The Labor Department] is being misleading in calling this a delay," Roper said. "That implies the provisions will eventually take effect. But DOL has made clear that a major reason behind [this] is to give them time to revise the rule and likely strip out those provisions that are essential to making it effective and enforceable."

For critics of the fiduciary rule, the 18-month delay is a welcome relief.

"While the Department of Labor works to address significant concerns with the rule, the delay will help provide certainty to investors and avoid confusion and cost associated with continued piecemeal delays," Kenneth Bentsen Jr., president and CEO of securities industry trade group SIFMA, said in a statement.

"SIMFA's member firms have long advocated for a best-interest standard, but one that more broadly protects clients and better protects client choice," he said.

The Labor Department also indicated in its amended rule that the delay will provide time to work with the SEC and other regulators, such as the Financial Industry Regulatory Authority and the National Association of Insurance Commissioners, on potential changes to the delayed provisions.

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