ASIC RG 274 — ASIC Regulatory Guide – RG 274 Product design and distribution obligations

Page 1 REGULATORY GUIDE 274 Product design and distribution obligations September 2024 About this guide This guide is for issuers and distributors of financial products that must comply with the design and distribution obligations in Pt 7.8A of the Corporations Act. It explains our interpretation of the design and distribution obligations, our expectations for compliance, and our general approach to administering the obligations. Page 2 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 2 About ASIC regulatory documents In administering legislation ASIC issues the following types of regulatory documents. Consultation papers: seek feedback from stakeholders on matters ASIC is considering, such as proposed relief or proposed regulatory guidance. Regulatory guides: give guidance to regulated entities by:  explaining when and how ASIC will exercise specific powers under legislation (primarily the Corporations Act)  explaining how ASIC interprets the law  describing the principles underlying ASIC’s approach  giving practical guidance (e.g. describing the steps of a process such as applying for a licence or giving practical examples of how regulated entities may decide to meet their obligations). Information sheets: provide concise guidance on a specific process or compliance issue or an overview of detailed guidance. Reports: describe ASIC compliance or relief activity or the results of a research project. Document history This guide was issued in September 2024 and is based on legislation and regulations as at the date of issue. Previous versions:  Regulatory Guide 274 Product design and distribution obligations, issued December 2020 Disclaimer This guide does not constitute legal advice. We encourage you to seek your own professional advice to find out how the Corporations Act and other applicable laws apply to you, as it is your responsibility to determine your obligations. Examples in this guide are purely for illustration; they are not exhaustive and are not intended to impose or imply particular rules or requirements. Page 3 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 3 Contents A Overview ........................................................................................... 4 Purpose of the design and distribution obligations ............................ 4 What this guide is about .................................................................... 7 Who this guide is for .......................................................................... 8 Summary of the obligations for issuers and distributors .................... 8 B Coverage of the design and distribution obligations ................ 10 Coverage at a glance ....................................................................... 10 Meaning of ‘financial product’ .......................................................... 11 Meaning of ‘issuer’ and ‘distributor’ ................................................. 13 Meaning of ‘distribution’ ................................................................... 15 C Product governance arrangements ............................................. 17 The need for effective product governance arrangements .............. 17 Scope of product governance arrangements .................................. 18 Implementing and maintaining effective product governance arrangements ................................................................................... 23 D Obligations for issuers.................................................................. 25 Preparing a TMD that meets the requirements ............................... 25 Distribution, review and reporting under the TMD ........................... 35 Product-specific issues and the TMD .............................................. 41 Making the TMD publicly available .................................................. 47 Taking reasonable steps in relation to distribution: Issuers ............. 47 Reviewing the TMD ......................................................................... 54 Notifying ASIC of ‘significant dealings’ ............................................ 57 Keeping records of decisions made ................................................ 59 E Obligations for distributors .......................................................... 60 Taking reasonable steps in relation to distribution .......................... 60 Notifying the issuer of ‘significant dealings’ ..................................... 73 Keeping records and reporting information ..................................... 74 F Our administration of the design and distribution obligations 76 Our role ............................................................................................ 76 Remedies for consumers ................................................................. 78 ASIC’s power to give relief............................................................... 79 Appendix: Exchange traded products ................................................ 81 The nature and structure of exchange traded products .................. 81 How the obligations apply ................................................................ 81 Reasonable steps for issuers .......................................................... 82 Key terms ............................................................................................... 85 Related information ............................................................................... 90 Page 4 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 4 A Overview Key points Issuers and distributors of financial products must comply with the design and distribution obligations in Pt 7.8A of the Corporations Act 2001 (Corporations Act) from 5 October 2021. The design and distribution obligations are intended to help consumers obtain appropriate financial products by requiring issuers and distributors to have a consumer-centric approach to the design and distribution of products. In particular: • issuers must design financial products that are likely to be consistent with the likely objectives, financial situation and needs of the consumers for whom they are intended; • issuers and distributors must take ‘reasonable steps’ that are reasonably likely to result in financial products reaching consumers in the target market defined by the issuer; and • issuers must monitor consumer outcomes and review products to ensure that consumers are receiving products that are likely to be consistent with their likely objectives, financial situation and needs. The design and distribution obligations require issuers and distributors to develop and maintain effective product governance arrangements across the life cycle of financial products. This will result in improved outcomes for consumers of these products. Purpose of the design and distribution obligations RG 274.1 The Treasury Laws Amendment (Design and Distribution Obligations and Product Intervention Powers) Act 2019 introduced design and distribution obligations to Ch 7 of the Corporations Act. Issuers and distributors of financial products must comply with the obligations from 5 October 2021. A new objects clause has also been added to Ch 7—that is, the ‘provision of suitable financial products to consumers of products’: see s760A(aa) of the Corporations Act. Note 1: The design and distribution obligations were originally scheduled to commence on 5 April 2021. Due to the COVID-19 pandemic, ASIC provided a temporary exemption from the obligations for six months: see ASIC Corporations (Deferral of Design and Distribution Obligations) Instrument 2020/486. Note 2: In this guide, references to sections (s), chapters (Ch), divisions (Div) and parts (Pt) are to the Corporations Act, unless otherwise specified. References to regulations (reg) are to the Corporations Regulations 2001 (Corporations Regulations), unless otherwise specified. Page 5 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 5 Improving product design and distribution RG 274.2 The Financial System Inquiry’s (FSI) recommendation for the introduction of the design and distribution obligations in 2014 was based on an acknowledgement of the limitations of a framework for consumer protection in financial services that relies heavily on disclosure, financial advice and financial literacy. RG 274.3 In particular, the FSI concluded that ‘disclosure can be ineffective for a number of reasons’ and that ‘disclosure alone is unlikely to correct the effect of broader market structures and conflicts that drive product development or distribution practices’ that result in poor consumer outcomes. Note 1: See FSI, Financial System Inquiry: Interim report, July 2014, pp 3–57. Note 2: ASIC has also, over a number of years, identified limitations to disclosure in retail financial services markets—see Report 632 Disclosure: Why it shouldn’t be the default (REP 632); Financial System Inquiry interim report: Submission by the Australian Securities and Investments Commission, August 2014, pp 15–17; Financial System Inquiry: Submission by the Australian Securities and Investments Commission, April 2014, pp 12, 80–1; Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry: Submission of the Australian Securities and Investments Commission—Round 6: Insurance, October 2018; and Peter Kell, then ASIC Deputy Chairman, ASIC and behavioural economics: Regulating for real people, speech, Queensland University Behavioural Economics Group symposium, 18 October 2016. RG 274.4 The FSI concluded that poor design and distribution practices played a significant role in contributing to consumer detriment. It is in this context that the FSI recognised the variable quality of design and distribution controls and recommended the introduction of the design and distribution obligations as a supply-side intervention that places additional responsibility for consumer outcomes on issuers and distributors. Note: See Financial System Inquiry: Final report (FSI final report), pp 199–201. Taking a consumer-centric approach RG 274.5 The design and distribution obligations are intended to help consumers obtain appropriate financial products by requiring issuers and distributors to have a consumer-centric approach to designing and distributing products. Note 1: See paragraphs 1.5, 1.7 and 1.12 of the Revised Explanatory Memorandum for the Treasury Laws Amendment (Design and Distribution Obligations and Product Intervention Powers) Bill 2019 (Revised Explanatory Memorandum). Note 2: In this guide, the term ‘consumer’ means a ‘retail client’ for a financial product. RG 274.6 The design and distribution obligations do not equate to an individualised product suitability test that requires assessment of each individual’s personal circumstances at point-of-sale. Instead the obligations require issuers and distributors to develop and maintain effective product governance Page 6 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 6 arrangements across the life cycle of financial products to ensure that consumers are receiving products that are likely to be consistent with their likely objectives, financial situation and needs. RG 274.7 For firms that already have effective product governance arrangements, this is unlikely to require a significant change to operations. As noted in the FSI final report (p 194): … firms that already invest in customer-focused business practices and procedures would not be required to change their operations significantly … [and] costs involved in changing practices should be low … firms would be likely to benefit from long-term savings through increased customer retention and avoid further regulatory costs. RG 274.8 The design and distribution obligations require an issuer of financial products to consider the design of its product (including its key attributes) and to determine an appropriate target market for the product, including whether one exists—that is, whether there is a class of consumers for whom the product, including its key attributes, would likely be consistent with their likely objectives, financial situation and needs. If an appropriate target market cannot be identified for a product, an issuer will not be able to offer the product. Note 1: In this guide, the term ‘key attributes’ is used to describe features and attributes of a product that affect whether it is likely to be consistent with the likely objectives, financial situation and needs of consumers in the target market. See also RG 274.77– RG 274.79. Note 2: See paragraph 1.48 of the Revised Explanatory Memorandum. RG 274.9 To ensure that distribution of the financial product is directed towards its target market, an issuer must specify distribution conditions and restrictions (distribution conditions) that make it likely that the consumers who acquire the product are in the target market. An issuer must, at the outset, plan how the product and its distribution will be monitored and reviewed, including by setting out the circumstances in which a review will be required. RG 274.10 The target market, distribution conditions, and information related to review and monitoring must be set out in a document called a ‘target market determination’ (TMD). The TMD is a written document prepared and made available before engaging in ‘retail product distribution conduct’. Note: For the meaning of ‘retail product distribution conduct’, see RG 274.29– RG 274.31. RG 274.11 Issuers and distributors must take reasonable steps that will, or are reasonably likely to, result in distribution being consistent with the TMD (reasonable steps obligation). They must adopt a risk management approach and take steps that are reasonably likely to reduce the risk of the product being distributed in a way that is inconsistent with the product’s TMD. Page 7 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 7 RG 274.12 Issuers and distributors also need to consider their distribution methods and factors that could affect whether consumers receive a financial product that is likely to be consistent with their likely objectives, financial situation and needs. This could include factors such as how the product, including its key attributes, is marketed and the sales practices that are adopted. RG 274.13 Further, an issuer must monitor and review the outcomes produced by the design and distribution of its financial products and consider whether changes are required to the product, to the way it is sold or to whom it is being sold. In particular, an issuer will need to consider: (a) whether the product reached the consumers in its target market or was sold to consumers outside the target market; (b) how the product performed in the hands of the consumers in the target market; (c) whether the product delivered what was promised; and (d) whether the product resulted in poor outcomes for consumers in the target market. RG 274.14 In this way, the design and distribution obligations require issuers and distributors to take a consumer-centric approach—placing consumer outcomes front and centre at the product design, product distribution, and monitoring and review stages of the product life cycle. Note: See paragraphs 1.5, 1.7 and 1.12 of the Revised Explanatory Memorandum. What this guide is about RG 274.15 This guide explains our interpretation of the design and distribution obligations, our expectations for compliance, and our general approach to administering the obligations. RG 274.16 In particular, it explains: (a) the coverage of the design and distribution obligations, including the financial products that are subject to the obligations (see Section B); (b) the product governance arrangements required by issuers and distributors to ensure that they comply with the obligations (see Section C); (c) the specific obligations for issuers (see Section D); (d) the specific obligations for distributors (see Section E); and (e) the range of administrative powers we have in relation to the design and distribution obligations, as well as our approach to the granting of relief from the obligations (see Section F). Page 8 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 8 Who this guide is for RG 274.17 This guide is for issuers and distributors of financial products that are available for acquisition by issue or by regulated sale in Australia. For a detailed explanation of the coverage of the design and distribution obligations, including who the obligations apply to, see Section B. Note: ‘Regulated sale’ has the meaning given in s994A(1). Summary of the obligations for issuers and distributors RG 274.18 Table 1 summarises the design and distribution obligations for issuers described in Section D of this guide. Table 2 summarises the obligations for distributors described in Section E of this guide. Table 1: Design and distribution obligations relevant to issuers Obligation Brief description Guidance Prepare a TMD: see s994B An issuer must prepare a TMD for its financial product. A TMD must meet the content requirements in s994B(5). These are to:  describe the class of consumers that comprises the target market for the product (see s994B(5)(b));  specify any distribution conditions and restrictions on distribution (see s994B(5)(c));  specify review triggers (events that reasonably suggest the TMD is no longer appropriate (see s994B(5)(d));  specify when the first review of the TMD must occur (see s994B(5)(e), (6) and (7));  specify when subsequent reviews of the TMD must occur (see s994B(5)(f), (6) and (7));  specify reporting periods for when distributors should provide information about the number of complaints about the product to the issuer (see s994B(5)(g), (6) and (7)); and  specify the kinds of information the distributors must report to the issuer (and how frequently) to enable the issuer to identify whether the TMD needs to be reviewed (see s994B(5)(h), (6) and (7)). The TMD must also meet the appropriateness requirements in s994B(8)—that is, the TMD must be such that it would be reasonable to conclude that, if the product were to be issued, or sold in a regulated sale:  to a consumer in accordance with the distribution conditions—it would be likely that the consumer is in the target market (see s994B(8)(a)); and  to a consumer in the target market—it would likely be consistent with the likely objectives, financial situation and needs of the consumer (see s994B(8)(b)). See RG 274.59– RG 274.136. Page 9 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 9 Obligation Brief description Guidance Make the TMD publicly available: see s994B(9) An issuer must ensure that the TMD is available to the public free of charge before it distributes a financial product. See RG 274.137– RG 274.139. Take reasonable steps in relation to distribution: see s994E(1) An issuer must take reasonable steps that will, or are reasonably likely to, result in a distribution being consistent with the product’s TMD. See RG 274.140– RG 274.148. Review the TMD to ensure that it remains appropriate: see s994C An issuer must review a TMD within 10 business days if it knows, or ought reasonably to know, that a review trigger, or an event or circumstance that reasonably suggests that the TMD is no longer appropriate, has occurred. An issuer must also review the TMD periodically as set out in the TMD to ensure that it remains appropriate. See RG 274.149– RG 274.157. Notify ASIC of ‘significant dealings’: see s994G If an issuer becomes aware of a significant dealing in the product that is not consistent with the TMD, it must notify ASIC as soon as practicable (within 10 business days). See RG 274.158– RG 274.163. Keep records: see s994F(1) and (3) An issuer must keep complete and accurate records of:  the decisions made in relation to its TMDs, and associated reviews, including the reasons for those decisions (including the data underlying those decisions); and  distribution information (to the extent that the issuer engages in distribution: see s994F(2)). See RG 274.165– RG 274.166. Table 2: Design and distribution obligations relevant to distributors Obligation Brief description Guidance Not to distribute unless a TMD has been made: see s994D A distributor must not engage in retail product distribution conduct in relation to a financial product unless it is engaging in excluded conduct or reasonably believes (after making all reasonable inquiries) that a TMD has been made, or a TMD is not required. See RG 274.169. Take reasonable steps in relation to distribution: see s994E(3) A distributor must take reasonable steps that will, or are reasonably likely to, result in distribution being consistent with the most recent TMD (unless the distribution is excluded conduct). See RG 274.167– RG 274.211. Notify the issuer of ‘significant dealings’: see s994F(6) If a distributor becomes aware of a significant dealing in the product that is not consistent with the TMD, it must notify the issuer as soon as practicable (within 10 business days). See RG 274.212– RG 274.216. Keep records: see s994F(3) A distributor must keep complete and accurate records of distribution information, including:  the number of complaints received about a product; and  information specified by the issuer in the TMD. See RG 274.217– RG 274.224. Page 10 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 10 B Coverage of the design and distribution obligations Key points This section explains the coverage of the design and distribution obligations, including: • the ‘financial products’ that are subject to the obligations (see RG 274.20–RG 274.24); and • the meaning of ‘issuer’, ‘distributor’ and ‘distribution’ for the purposes of the obligations (see RG 274.25–RG 274.31). Coverage at a glance RG 274.19 Figure 1 summarises the coverage of the design and distribution obligations. Figure 1: Coverage of the design and distribution obligations Note: See RG 274.20–RG 274.30 for the information in this figure (accessible version). Excluded financial products include: • MySuper products; • margin lending facilities; • most ordinary shares; • securities issued under an employee share scheme; and • other products prescribed by the Corporations Regulations. Financial products, including: • products and securities requiring disclosure under Pts 6D.2 and 7.9 of the Corporations Act; • products that are not regulated under Pts 6D.2 or 7.9 of the Corporations Act, but are within the scope of the ASIC Act (e.g. credit contracts and short-term credit facilities); and • other products prescribed by the Corporations Regulations. What’s covered? Issuers include persons who: • issue a financial product; and • must prepare a disclosure document under the Corporations Act. Distributors means regulated persons, including: • AFS licensees; • authorised representatives; • credit licensees; and • credit representatives. Who’s covered? What’s excluded? Distribution means ‘retail product distribution conduct’ in relation to a consumer, comprising: • dealing in the financial product; • giving a disclosure document in relation to offering a financial product; • providing a PDS; and • providing financial product advice. What’s distribution? Page 11 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 11 Meaning of ‘financial product’ RG 274.20 In this guide, ‘financial product’ refers to a product to which the design and distribution obligations apply: see s994AA and 994B(1). This includes: (a) products for which a Product Disclosure Statement (PDS) must be prepared under Pt 7.9 of the Corporations Act (e.g. interests in a managed investment scheme, general insurance, and interests in a superannuation fund); (b) securities for which a disclosure document must be prepared under Pt 6D.2 of the Corporations Act (e.g. hybrid securities), except for ordinary shares (unless the company is an investment company or intends the shares to be converted to preference shares); (c) products that are not regulated under Pts 6D.2 or 7.9, but that are ‘financial products’ under Div 2 of Pt 2 of the Australian Securities and Investments Commission Act 2001 (ASIC Act) (see s994AA(1))—this includes credit facilities under the ASIC Act, such as credit contracts regulated under the National Consumer Credit Protection Act 2009 (National Credit Act) (e.g. credit cards, home loans, funeral expenses policies), and short-term credit not regulated under the National Credit Act; (d) products prescribed by the Corporations Regulations as requiring a TMD, including: (i) depository interests in simple corporate bonds (see reg 7.8A.05); (ii) debentures of a body that is an authorised deposit-taking institution (ADI) or registered under s21 of the Life Insurance Act 1995 (see reg 7.8A.06); (iii) basic banking products (as defined in the Corporations Act) (see reg 7.8A.07); (iv) investor directed portfolio services (IDPSs) (see reg 7.8A.08); (v) exchange traded products (ETPs) (see reg 7.8A.09); and (vi) certain custodial arrangements (see reg 7.8A.10). Note 1: We have provided information about how the design and distribution obligations apply to issuers and distributors of ETPs in the appendix: see RG 274.255– RG 274.264. Note 2: ‘Basic banking products’ includes 31-day term deposits—see Class Order [CO 14/1262], or any instrument that amends or replaces that class order. This is in line with the Government’s intended operation of the legislation as set out in a public statement titled Updated amendments to the design and distribution obligations. Products that are not subject to the obligations RG 274.21 There are some financial products that are not subject to the design and distribution obligations: see s994B(3). These include: (a) MySuper products; Page 12 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 12 (b) margin lending facilities; (c) generally, fully paid ordinary shares in a company (including a foreign company); (d) securities issued under an employee share scheme; and (e) products prescribed by the Corporations Regulations as not requiring a TMD, including: (i) interests in eligible rollover funds, as defined in the Superannuation Industry (Supervision) Act 1993 (SIS Act); (ii) superannuation interests that are defined benefit interests (as defined in the SIS Act); (iii) medical indemnity insurance; (iv) depository interests in foreign fully paid ordinary shares; (v) bank drafts and Australia Post money orders; (vi) credit facilities that are not issued in the course of a business that is wholly or partly a business of providing credit; (vii) credit provided for business purposes; (viii) credit facilities set out in reg 2B(3)(b) of the Australian Securities and Investments Commission Regulations 2001 (ASIC Regulations) that do not involve the incurring of a deferred debt or payment of a deferred debt. This means, currently, the design and distribution obligations do not apply to consumer leases because they do not involve the incurring of a deferred debt; (ix) the provision of a mortgage (as distinct from the credit contract secured by the mortgage, to which the obligations apply), noting the mortgage is generally provided by the person taking out the credit (as opposed to the credit provider); and (x) the provision of credit by a pawnbroker in the ordinary course of a pawnbroker’s business (see reg 7.8A.20). Note 1: For further guidance on the MySuper exemption, see RG 274.133–RG 274.135. Note 2: ‘Ordinary share’ is not defined in the Corporations Act. According to the Revised Explanatory Memorandum at paragraph 1.29, consistent with existing practice, ‘ordinary share’ is to take its ordinary meaning having regard to the legislative context in which it is used and the purpose of the design and distribution obligations. However, the use of the term ‘ordinary share’ is intended to distinguish such shares from other types of shares, particularly preference shares. Note 3: See the definition of ‘employee share scheme’ in s9. Note 4: If a superannuation fund issues both defined benefit interests and other interests, the exemption in reg 7.8A.20(3) only applies to the defined benefit interest. Note 5: ASIC Corporations (Design and Distribution Obligations Interim Measures) Instrument 2021/784 provides modifications, clarifications and exemptions to the regime for certain products and in certain circumstances. The measures in these instruments provide certainty on the application of the design and distribution Page 13 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 13 obligations in line with the Government’s intended operation of the legislation as set out in a public statement titled ‘Updated amendments to the design and distribution obligations’. New, continuing and legacy products RG 274.22 Issuers and distributors must comply with the design and distribution obligations for financial products that are to be issued to a consumer: see s994B(1)–(2) and 994E(3). This means the obligations apply to: (a) products launched after commencement of the regime (new products); and (b) existing products that continue to be issued to consumers after commencement of the regime (continuing products). RG 274.23 Closed products for which no further offers or issues are being made after commencement (legacy products) are not affected by the design and distribution obligations: see s994B(1) and (2). Note: Some products are automatically reissued by the issuer after initial acquisition by consumers. For example, many general insurance policies renew on an annual basis and consumers enter into new contracts at each renewal. Similarly, many term deposit products automatically roll over at the end of their term, resulting in a new term deposit product for the same term. Each renewal or rollover involves the issue of a financial product. Renewals are discussed further in Section E. RG 274.24 Issuers and distributors do not have to comply with the design and distribution obligations for secondary sales of products, unless such sales are made in circumstances that could otherwise be used to avoid the obligations (regulated sale). Note 1: The term ‘secondary sale’ is not defined for the purposes of the design and distribution obligations. Instead, the legislative intent is to exclude the sale of products on secondary markets (unless such sales are made in ways that could otherwise be used to avoid the obligations) by applying the regime to primary or initial offerings and regulated sales: see also the Revised Explanatory Memorandum at paragraph 1.45. For the definition of ‘regulated sale’, see s994A(1). Note 2: The appendix explains how the design and distribution obligations apply to issuers and distributors of ETPs, which have an open-ended structure that allows the issuer of an ETP to issue and redeem units on a daily basis resulting in the number of units on issue fluctuating depending on investor demand. Meaning of ‘issuer’ and ‘distributor’ RG 274.25 The design and distribution obligations apply to issuers and distributors of financial products that are available for acquisition by issue or by regulated sale in Australia. Note 1: The geographical coverage of the design and distribution obligations is limited to financial products that are available for acquisition by issue or by regulated sale in Page 14 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 14 Australia as a result of the jurisdictional limitations that apply to the obligations to prepare a disclosure document (see s700(4) and 1011A); the jurisdictional limitation that applies to ‘extended operation financial products’ (see reg 7.8A.20(8)); and the jurisdictional limitation that applies to persons required by the regulations to make a TMD (see regs 7.8.03 and 7.8A.04(1)(a) and s994B(1)(c)). Issuers that make a recognised offer of securities under mutual recognition in Australia are not required to make a TMD: see reg 7.8A.04. Note 2: Exempt bodies and exempt public authorities are excluded: see s994B(3). Issuers RG 274.26 For issuers, the design and distribution obligations apply to persons who: (a) must prepare a disclosure document under the Corporations Act (e.g. a responsible entity of a managed investment scheme, an insurer, a superannuation trustee, and an issuer of hybrid securities) (see s994B(1)(a) and (b)); (b) if they are not covered by (a)—issue or sell under a regulated sale a financial product within the meaning of Div 2 of Pt 2 of the ASIC Act (e.g. an issuer of a funeral expenses policy or a credit provider that issues a credit card (see s994B(1)(ba)); and (c) are required by the Corporations Regulations to make a TMD (e.g. persons who issue a simple corporate bonds depository interest under a two-part simple corporate bonds prospectus (see reg 7.8A.05)) or who issue or offer to issue basic banking products (see reg 7.8A.07) (see s994B(1)(c)). Distributors RG 274.27 For distributors, the design and distribution obligations apply to regulated persons, as defined in s994A(1), including Australian financial services (AFS) licensees and authorised representatives, as well as persons who are exempt from holding an AFS licence. RG 274.28 The Corporations Regulations extend the meaning of regulated persons to include: (a) credit licensees and credit representatives within the meaning of the National Credit Act (see reg 7.8A.02(4)), including persons who are exempt from holding a credit licence; (b) issuers and sellers of extended operation financial products (see reg 7.8A.02(5)); and (c) a distributor within the meaning of s910A of the Corporations Act (as modified by ASIC Corporations (Basic Deposit and General Insurance Product Distribution) Instrument 2015/682) for the following products: (i) a basic deposit product; (ii) a general insurance product; and Page 15 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 15 (iii) a bundled consumer credit insurance product (within the meaning of the ASIC instrument) (see reg 7.8A.02(3)). Note: Persons who refer consumers to another person who engages in financial services or credit activities (‘referrers’) are regulated persons if they fall under one or more of the categories listed above, such as persons exempt from holding an AFS licence or a credit licence: see reg 7.6.01(1)(e) and (ea) of the Corporations Regulations and reg 25(2), (2A) and (5) of the National Consumer Credit Protection Regulations 2010 (National Credit Regulations). Referrers who are regulated persons are subject to the reasonable steps obligation if their conduct amounts to retail product distribution conduct: see RG 274.208–RG 274.210. Meaning of ‘distribution’ RG 274.29 For the purposes of this guidance, distribution means ‘retail product distribution conduct’ as defined in s994A(1) to include: (a) dealing in the financial product; (b) giving a disclosure document in relation to offering a financial product; (c) providing a PDS; and (d) providing financial product advice. RG 274.30 The meaning of ‘retail product distribution conduct’ is based on terms defined in the Corporations Act (for example, dealing in the financial product has the meaning given by s766C, as amended by s994A(1)). The extended operation of the design and distribution obligations means that those terms (as incorporated) also apply to financial products that are not regulated by the Corporations Act, but are regulated under the ASIC Act: see paragraph 1.4 of the Supplementary Explanatory Memorandum for the Treasury Laws Amendment (Design and Distribution Obligations and Product Intervention Powers) Bill 2019 and s994AA. For example, arranging for a consumer to apply for a home loan would constitute retail product distribution conduct. Note: Guidance on conduct that constitutes ‘dealing’ as defined by s766C is set out in Regulatory Guide 36 Licensing: Financial product advice and dealing (RG 36). These terms are relevant to all products covered by the design and distribution obligations. For the purposes of the obligations, ‘dealing’ has the meaning given by s766C, subject to some modifications: see s994A(1). RG 274.31 The provision of personal advice falls under the definition of ‘excluded conduct’: see s994A(1). Accordingly, certain obligations do not apply when personal advice is provided: see, for example, s994D (prohibition on distribution unless TMD made) and 994E(3) (reasonable steps). As a result of s994AA(2), the definition of personal advice conduct in s766B(3) applies to products beyond Ch 7 of the Corporations Act for the purposes of the design and distribution obligations. This means excluded conduct currently covers conduct in the nature of personal advice that is provided in relation to Page 16 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 16 products that are regulated under the ASIC Act, as well as those regulated under the Corporations Act: see s994AA(2), 994A(1) and 766B(3). RG 274.201–RG 274.207 discuss how the design and distribution obligations interact with the personal advice obligations. Note: ‘Excluded conduct’ also includes the giving of a disclosure document or PDS in the course of providing personal advice about a financial product: see ASIC Corporations (Design and Distribution Obligations Interim Measures) Instrument 2021/784. This is in line with the Government’s intended operation of the legislation as set out in a public statement titled ‘Updated amendments to the design and distribution obligations’. Page 17 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 17 C Product governance arrangements Key points This section explains: • the requirement for issuers and distributors to implement effective product governance arrangements to ensure that they comply with the design and distribution obligations (see RG 274.32–RG 274.34); • the scope of the product governance arrangements that should be implemented, including at the product design stage, at the distribution stage, and at the monitoring and review stage of the product life cycle (see RG 274.35–RG 274.51); and • how to implement and maintain effective product governance arrangements (see RG 274.52–RG 274.58). The need for effective product governance arrangements RG 274.32 Issuers and distributors must implement and maintain robust and effective product governance arrangements to ensure that they comply with the design and distribution obligations. Note: The need for robust and effective arrangements to deliver products to consumers and comply with legal obligations relating to the provision of financial products was highlighted in the judgment of Justice Beach in Australian Securities and Investments Commission v Commonwealth Bank of Australia [2020] FCA 790. Justice Beach found that the Commonwealth Bank of Australia (CBA) had, for example, contravened s912A(1)(a) and (c) of the Corporations Act. This was due to CBA’s failure to establish and maintain systems and processes to ensure that it could provide the benefits of CBA’s product in accordance with its terms and conditions. In particular, Justice Beach noted (at [9]) that: • there was a poor control environment with no adequate system for reporting issues with the product; • complaints handling processes were inadequate; • there was no system to identify complaints about the product, or an appropriate IT system to administer the product; and • there was a failure to establish any business unit or team ultimately responsible for ensuring that the product benefits were being applied to the relevant products. RG 274.33 Robust product governance arrangements will help issuers and distributors avoid similar outcomes to those identified by the FSI and the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Royal Commission) and assist in the management of non- financial risk. The FSI highlighted that weaknesses in processes for, and controls on, product distribution to consumers have led to significant consumer losses. Note: See FSI final report, pp 199–201, and the Revised Explanatory Memorandum, paragraphs 3.1–3.25. Page 18 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 18 RG 274.34 The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry: Final report (Royal Commission final report) noted that the ‘number and complexity of products, and absence of “end-to- end” accountability … are issues wholly within the control of every financial services entity’. Note: See Royal Commission final report, vol. 1, p 115. Scope of product governance arrangements RG 274.35 The design and distribution obligations impose requirements at each stage of developing and distributing a financial product. These stages are: (a) product design (see, for example, s994B); (b) product distribution (see, for example, s994E(3)); and (c) monitoring and review (see, for example, s994C). RG 274.36 These stages are depicted in Figure 2. All of these must be considered when implementing and maintaining product governance arrangements. RG 274.37 At the centre of Figure 2 is the target market, which reflects the centrality of the target market to the design and distribution obligations—specifically, that at all stages of product design, product distribution, and monitoring and review, the focus is on consumers in the identified target market receiving products that are likely to be consistent with the consumers’ likely objectives, financial situation and needs. RG 274.38 Figure 2 also depicts possible outcomes from monitoring and review, which include: (a) no change to the product or the way it is distributed; (b) changing the product’s design, target market or distribution; or (c) ceasing to offer the product. Page 19 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 19 Figure 2: Consumer-centric approach to design and distribution Note: See RG 274.35–RG 274.38 for the information in this figure (accessible version). Product design stage RG 274.39 At the product design stage, product governance arrangements must include a product design and approval system. This system should include an initial assessment of whether a financial product has been designed in a way that is likely to be consistent with the likely objectives, financial situation and needs of the class of consumers for whom the product is intended. As part of this assessment, issuers should consider information reasonably available to them on consumer outcomes for past or similar products. The design and distribution obligations mean that a product development process that does not consider consumer outcomes will not be feasible. Note 1: The term ‘product design stage’ is used here to refer to the stage of designing a new product, as well as reviewing the design of a continuing product. Note 2: This approach is consistent with paragraph 1.48 of the Revised Explanatory Memorandum, which sets out that one purpose of the TMD is to ensure that issuers design products for which an appropriate target market can be defined. RG 274.40 In carrying out this assessment, it is possible that some issuers will conclude that a financial product (including its key attributes) is unlikely to be consistent with the objectives, financial situation and needs of any class of consumers. This may be due, for example, to risk, or low value. Page 20 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 20 RG 274.41 At the product design stage, an issuer should also determine how its financial product will be distributed, to enable it to meet its obligations to: (a) specify distribution conditions to ensure that the product is directed towards the intended target market (see RG 274.96–RG 274.100); and (b) take reasonable steps to ensure that distribution is consistent with the TMD (see RG 274.140–RG 274.148). Note: For an example of a distribution approach that is likely to result in distribution to consumers for whom the product is not appropriate, and consequently to poor consumer outcomes, see Report 470 Buying add-on insurance in car yards: Why it can be hard to say no (REP 470). New products RG 274.42 For new financial products, the product design stage will involve: (a) identifying a class of consumers that are likely to have objectives, financial situations and needs in common that might be met by a financial product. The likely objectives, financial situation and needs of the class of consumers (i.e. the target market) will then drive the design of the product, including its key attributes. The issuer will ultimately ensure that the product (including its key attributes) is likely to be consistent with the likely objectives, financial situation and needs of the consumers in the target market; (b) analysing expected distribution methods for the product to determine whether it is reasonable to conclude that the product will likely be distributed to its target market and not outside its target market; (c) robust testing of the product; and (d) determining how consumer outcomes will be measured and monitored when the product is being distributed, given the obligation to carry out reviews (see s994B and 994C, and RG 274.149). Continuing products RG 274.43 For existing products that continue to be issued to consumers, the product design stage will involve: (a) establishing a target market by assessing the product (including its key attributes) and the consumer objectives, financial situation and needs for which the product (including its key attributes) is likely to be appropriate; (b) reviewing existing distribution arrangements for the product to determine whether it is reasonable to conclude that the product is likely being distributed to its target market; (c) where the product (including its key attributes) is not likely to be consistent with the objectives, financial situation and needs of a Page 21 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 21 definable target market, or where its method of distribution is likely to result in sales of the product outside its target market, redesigning the product and/or the distribution arrangements, or ceasing distribution of the product; and (d) determining how consumer outcomes will be measured and monitored over time, given the obligation to carry out reviews (see s994B and 994C, and RG 274.149). RG 274.44 Issuers may already have a concept of a ‘target market’ for the product (e.g. in a marketing or commercial sense). In these cases, issuers must still critically assess the product (including its key attributes) and identify the target market by reference to consumers for whom the product is likely to be consistent with their likely objectives, financial situation and needs. If the identified target market for the continuing product does not match the class of consumers who have historically been sold the product, the issuer must: (a) set distribution conditions and restrictions in line with the identified narrower target market; (b) consider modifying the design of the product; or (c) cease offering the product. Choice architecture of the product RG 274.45 The ‘choice architecture’ of a financial product, including choices within the product itself, as well as the context of the sales process and the presentation of the product within that context, will be relevant to the issuer in considering: (a) the design of its product (e.g. the impact of bundling); and (b) whether (and how) the product is likely to reach its target market (e.g. the impact of complexity and frictions in choices, processes and information). Note: ‘Choice architecture’ refers to features in an environment that influence consumer decisions and actions. These features are present at every stage of product design and distribution. Examples include product bundling, default settings, sales process and website design. RG 274.46 For example, the choice architecture of both the design of add-on insurance products (e.g. bundling with finance) and their distribution (e.g. the timing of the sale and the use of pressure tactics) in car yards has been shown to exploit decision fatigue, as well as weakening consumers’ defences to ‘persuasion tactics’. This has led to sales to consumers of products that are not consistent with the objectives, financial situation and needs of those consumers, and consequently to poor outcomes: see REP 470. Page 22 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 22 Taking a consumer-centric approach in product design RG 274.47 Taking a consumer-centric approach involves placing consumer outcomes front and centre: see RG 274.5–RG 274.14. When considering the design of its financial product and how it will reach consumers in the target market, in order to take a consumer-centric approach an issuer should: (a) apply its existing knowledge and experience about how consumers are influenced in order to achieve the objectives of the design and distribution obligations—for example, many firms are already adept at capturing consumers’ attention and influencing their behaviour through shaping product design, marketing and sales tactics. Issuers should avoid engaging in conduct that is likely to impede consumers from obtaining products that are consistent with their likely objectives, financial situation and needs or that will result in consumers receiving unsuitable products; and (b) consider consumer vulnerabilities, and how those vulnerabilities may increase the risk that consumers are sold products that do not meet their objectives, financial situation and needs, and will lead to poor consumer outcomes. Note 1: Consumers can experience vulnerability as a result of any number of factors, including: • personal or social characteristics that can affect a person’s ability to manage financial interactions (e.g. speaking a language other than English, having different cultural assumptions or attitudes about money, or experiencing cognitive or behavioural impairments due to intellectual disability, mental illness, chronic health problems or age); • the actions of the market or individual providers (e.g. vulnerabilities created by a product’s choice architecture); and • experiencing specific life events or temporary difficulties (e.g. an accident or sudden illness, family violence, job loss, having a baby, or the death of a family member). Note 2: See Productivity Commission Inquiry into competition in the Australian financial system: Submission by the Australian Securities and Investments Commission, September 2017. Product distribution stage RG 274.48 In order for issuers and distributors to meet their obligation to take reasonable steps, product governance arrangements must include appropriate processes and controls at the product distribution stage. These processes and controls must be designed to reduce the risk that financial products will not be consistent with the likely objectives, financial situation and needs of the consumers who acquire them. RG 274.49 Product governance arrangements must also include a process for effective communication between those responsible for designing the financial product and those responsible for marketing and distributing the product, Page 23 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 23 particularly in relation to the intended consumer outcomes associated with the product. This will help issuers and distributors meet their obligations to: (a) take reasonable steps in relation to distribution; (b) report distribution information, such as complaints information and information the issuer may need to promptly determine that a TMD may no longer be appropriate; and (c) notify issuers of significant dealings outside the target market (see RG 274.212–RG 274.216). Note: Issuers and distributors are not taken to have failed their obligations to take reasonable steps in relation to distribution merely because a consumer outside the target market acquires the product (see s994E(2)(b) and 994E(4)). Also see RG 274.140. Monitoring and review stage RG 274.50 Product governance arrangements must provide for an ongoing, iterative and responsive design and distribution process. This must allow for regular monitoring and review of product performance through which issuers address problems when they arise. This includes carrying out reviews when circumstances indicate that a TMD may no longer be appropriate, and taking steps as necessary to redesign products and/or their distribution: see s994C and s994(8)(b). RG 274.51 After a financial product has been launched, an issuer should draw on information reasonably available to it about how consumers in the target market are using its product or similar products on the market and the actual consumer outcomes from these products: see RG 274.152–RG 274.154. This will involve collecting and analysing relevant and reliable consumer, product performance, value and transaction data. This information should feed back into the product design and ongoing review processes. In particular, this information is likely to be useful for the critical assessment and testing of a product and similar types of products for the purposes of meeting the appropriateness requirement in s994B(8)(b): see RG 274.88–RG 274.95. Implementing and maintaining effective product governance arrangements RG 274.52 For product governance arrangements to be effective, issuers and distributors must: (a) document their product governance arrangements in some form (see RG 274.53); (b) fully implement these arrangements, and monitor and report on their use (see RG 274.54–RG 274.56); and (c) regularly review the effectiveness of these arrangements and ensure that they are up to date (see RG 274.57–RG 274.58). Page 24 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 24 Documenting product governance arrangements RG 274.53 Documentation of product governance arrangements is required for issuers and distributors to demonstrate compliance with the design and distribution obligations. Documentation should include details of who is responsible, the timeframes involved, and associated record keeping and reporting. Note: Issuers and distributors must keep records of their compliance with the design and distribution obligations: see s994F(1) and (3), RG 274.165–RG 274.166 and RG 274.217–RG 274.224. Implementing, monitoring and reporting on product governance arrangements RG 274.54 Issuers and distributors must fully implement product governance arrangements they have documented. This means the arrangements must be put into practice and integrated into the day-to-day conduct of the business. RG 274.55 For product governance arrangements to work effectively, issuers and distributors need staff at all levels, including senior management, to understand these arrangements and be committed to the success of the arrangements. Integrating the arrangements into the operation of the business, and ensuring that they are well resourced and supported, is necessary to making them effective on an ongoing basis. RG 274.56 AFS licensees and credit licensees need to monitor their compliance (including with the design and distribution obligations), and certain breaches must be reported to ASIC, including under s912D. They must be able to show ASIC how they are able to monitor compliance with the design and distribution obligations and appropriately address any compliance breaches. Note: For guidance on meeting the general AFS licensing obligations, see Regulatory Guide 104 AFS licensing: Meeting the general obligations (RG 104). For guidance on meeting the general credit licensing obligations, see Regulatory Guide 205 Credit licensing: General conduct obligations (RG 205). Reviewing product governance arrangements RG 274.57 Regularly reviewing product governance arrangements is necessary for these arrangements to remain effective. In some cases, such as when compliance issues have arisen (e.g. major breaches or repeated compliance failures), issuers and distributors may need to procure an independent external review. RG 274.58 Issuers and distributors must review their product governance arrangements when there are material changes to their obligations, their business or the environment in which they operate. To facilitate this, issuers and distributors also need a process for identifying changes that may impact on the effectiveness of their product governance arrangements. Page 25 REGULATORY GUIDE 274: Product design and distribution obligations © Australian Securities and Investments Commission September 2024 Page 25 D Obligations for issuers Key points The design and distribution obligations for issuers are to: • prepare a TMD for the financial product that meets the requirements in s994B(5) and (8) (the ‘content and appropriateness requirements’) (see RG 274.59–RG 274.136); • make the TMD publicly available—this applies to both new and continuing products (see RG 274.137–RG 274.139); • take reasonable steps that will, or are reasonably likely to, result in distribution being consistent with the TMD (see RG 274.140– RG 274.143); • review the TMD to ensure that it remains appropriate (see RG 274.149– RG 274.157); • notify ASIC of significant dealings that are not consistent with the TMD (see RG 274.158–RG 274.164); and • keep records of the decisions made (including the data and analysis underlying those decisions) in relation to compliance with the design and distribution obligations (see RG 274.165–RG 274.166). The law requires a TMD to contain certain information: see s994B(5) and RG 274.63.The information in the TMD must be specified in sufficient detail to conclude that the product is appropriate for the target market and that the distribution conditions appropriately direct distribution of the product to that market: see s994B(8) and RG 274.64–RG 274.66. Preparing a TMD that meets the requirements RG 274.59 A TMD is a written document that describes the class of consumers that comprises the target market for a financial product and matters relevant to the product’s distribution and review. RG 274.60 The purpose of the TMD is to drive discipline