The FMA has released its guidance note on how KiwiSaver sales and distribution are regulated under the Financial Advisers Act 2008. The guidance note sets out the factors the FMA will take into account when considering whether financial advice has been given, and if so whether the advice is class or personalised advice.

Despite a number of submissions to the contrary in the consultation process, the guidance note retains the concept of "implied" advice, whereby opinions can be given or recommendations made implicitly even if the only material expressly provided falls within the "no advice" exceptions in section 10(3) (for example, where the material provided is entirely factual in nature).  In particular, the FMA is of the view that a general discussion with a client about the benefits of KiwiSaver, followed by the provision of offer documentation for a particular scheme, is likely to constitute financial advice.  The FMA also discusses contextual factors it considers relevant to whether opinions or recommendations are provided, such as who initiated the conversation and its length.  The FMA expects distributors to have taken account of the guidance note from 1 March 2013.

Although the guidance note is specific to KiwiSaver, the FMA acknowledges that many of the general principles are likely to apply to other financial products.  A copy of the guidance note is available here.