Switzerland: Voters Overwhelmingly Approve Opt-Out System for Organ Donations

Source: US Global Legal Monitor

On May 15, 2021, Swiss voters approved by a vote of 60.20%–39.80% an amendment to the Swiss Transplantation Act. The amendment replaced the current explicit opt-in rule for organ donations (consent solution) with an opt-out rule (presumed consent solution). The presumed consent solution assumes that a person wishes to donate unless they have made a statement of objection. Voter turnout was 40.26%. The new opt-out rule will enter into force in 2024 at the earliest.

Content of the Transplantation Act Amendment

The amendment provides that organs of a deceased person may be removed if the death has been declared and the person has not objected to the removal before their death. (Art. 8, para. 1.) Every person 16 years or older may record an objection, approval, or any other statement regarding organ donation in a newly established Organ and Tissue Donation Register. (Art. 8a; art. 10a, para. 1.) Such a statement may be revoked at any time. (Art. 8b.) The register may be consulted only after it has been decided to discontinue life support measures. (Art. 8c, para. 2.)

If no objection, approval, or other statement regarding organ donation has been recorded, the next of kin of the deceased person must be consulted as to whether they are aware of the person’s wishes. (Art. 8c, para. 3.) No organ removal may take place if the next of kin cannot be reached. (Art. 8, para. 3.) If they are not aware of any statement, they must be informed of their right to object to the organ removal, but must take into account the deceased’s presumed wishes. (Art. 8c, para. 4; art. 8, para. 2.) The wishes of the deceased take precedence over the wishes of the next of kin. (Art. 8, para. 6.)

The amendment requires the government to regularly provide the public with comprehensive information on transplantation medicine in general and on the new rules for organ donation. In particular, information must be provided on the possibilities for recording an objection, approval, or any other statement regarding organ donation and the option to revoke such a statement at any time; the consequences of not recording an objection — namely, that without an objection from the donating person or their next of kin organ, tissue, or cell removal will be permissible; and the risks and harms related to the preparatory medical procedures. The information must reach all communities and be accessible and comprehensible. (Art. 61.)

Recommendation from the Federal Council and Parliament

The Federal Council (the Swiss government) stated that even though a majority of Swiss people are in favor of organ donation, the actual numbers of donations are low because people do not record their consent. In the opinion of the Federal Council, the new rules satisfy ethical considerations by still involving the next of kin, who may object if they know the deceased’s opposition to organ donation. Furthermore, because of the comprehensive information duties with regard to registering an objection, one can assume that a person consented to an organ donation if no objection has been recorded, thereby relieving the next of kin of the duty to make such a difficult decision. (Popular Vote of May 15, 2022 — Explanations by the Federal Council at 34.)

Arguments from the Referendum Committee

The referendum committee contended that there will always be people who are not aware of their duty to object to an organ donation. In the committee’s opinion, the presumed consent solution violates a person’s constitutional rights to self-determination and physical integrity. In addition, the committee felt that not requiring explicit consent is unethical, as every medical procedure, even the smallest one, requires informed consent. Lastly, the committee contended that most people are not aware of what organ donation really entails and that organ removals are not performed on “cold bodies.” (Popular Vote of May 15, 2022 — Explanations by the Federal Council at 32, 33.)

Background to the Referendum

On March 22, 2019, the popular initiative “Promote Organ Donations – Save Lives” was officially submitted to the Federal Council. The initiative sought to replace the current consent solution with the presumed consent solution for organ donations. However, it did not regulate the role of the next of kin of the deceased. The Federal Council therefore endorsed an indirect counterproposal the amendment to the Transplantation Act discussed above — that had been submitted by the Federal Assembly (parliament). The popular initiative was withdrawn on the condition that the indirect counterproposal would be enacted. (Popular Vote of May 15, 2022 — Explanations by the Federal Council at 30.) However, the indirect counterproposal was challenged by an “optional referendum.” Optional referendums against federal acts are possible if valid signatures from 50,000 citizens are submitted within 100 days of the official publication of the enactment of the law. (Swiss Constitution art. 141.)

AFSCME’s Saunders: It’s time to turn ‘anguish into action’ on gun violence

Source: American Federation of State, County and Municipal Employees Union

AFSCME President Lee Saunders released the following statement about the gun violence epidemic after yet another school shooting this week:

“Once again this week, we are grieving the loss of innocent lives, including 19 children, in a mass school shooting. We extend our deepest condolences to the families enduring unimaginable heartbreak and to the entire community of Uvalde, Texas. Now, we must also turn anguish into action.

“AFSCME has long supported common-sense measures to keep our children safe and to keep deadly firearms out of the hands of dangerous people. We renew our call today for bold measures like expanded background checks and restrictions on the sale of guns to suspected terrorists and others who pose a danger to our communities. We need much bigger investments in mental health services and substance abuse treatment. We need enhanced school security measures – better infrastructure; more School Resource Officers; improved readiness training for teachers and school staff; and more. 

“The only way we will make change on this life-or-death issue is through the political process. If you are feeling anger and despair, the answer is to hold politicians accountable. The answer is to vote. The answer is to organize your neighbors. The answer is to support candidates at the federal, state and local levels who will take this crisis seriously, who will take the steps necessary to protect our children and our communities. 

“AFSCME members serve as school employees, emergency medical personnel, law enforcement officers and behavioral health professionals. In other words, we are on the front lines of this crisis. We have a lot at stake. We have expertise to bring to bear. And we will no longer tolerate a failed status quo that has tragic and deadly consequences.

“It is long past time to treat this gun violence epidemic like the urgent public health problem that it is. We can balance the rights of responsible gun owners with the right of students, teachers, paraprofessionals, custodians, cafeteria workers, crossing guards and others to walk through the schoolhouse doors without fearing for their lives.

“Across the country, we will observe moments of silence this week to remember those who were murdered at Robb Elementary School, just as we did for the victims of the recent supermarket shooting in Buffalo, New York, just as we do seemingly every week. But when we engage on these issues in the political arena, we cannot be silent. We must speak out with clarity and conviction, with passion and resolve, to save the lives of our children.”

President Joseph R. Biden, Jr. Approves Major Disaster Declaration for Kansas

Source: US Federal Emergency Management Agency

WASHINGTON — FEMA announced that federal disaster assistance has been made available to the state of Kansas to supplement state, tribal and local recovery efforts in the areas affected by severe winter storms and straight-line winds from March 17-22, 2022.

Federal funding is available to the state, eligible local and tribal governments and certain private nonprofit organizations on a cost-sharing basis for emergency work and the repair or replacement of facilities in Barton, Clark, Comanche, Edwards, Ellis, Ford, Graham, Gray, Hodgeman, Kiowa, Lane, Meade, Ness, Pawnee, Phillips, Rooks, Rush, Stafford, Trego and Wallace counties.

Federal funding is also available on a cost-sharing basis for hazard mitigation measures statewide.

DuWayne Tewes has been named the Federal Coordinating Officer for federal recovery operations in the affected areas. Additional designations may be made at a later date if warranted by the results of damage assessments.

Safety, energy top agenda at Western States Tripartite

Source: US International Brotherhood of Boilermakers

Boilermakers, contractors and owners gathered in Santa Monica, California, March 22 for the 2022 Western States Tripartite Conference to discuss mutual concerns and opportunities. Under the theme “Seeking Solutions for a Stronger Industry,” safety and the future of the energy industry were two topics that featured prominently into presentations and discussions.

“As always, we are focused on our employers’ needs and what we can do to help them succeed,” said J. Tom Baca, IVP-Western States, welcoming participants. “We haven’t been able to hold this event since 2019, and it’s important for us to come together to talk about how we can improve the industry and what we do.”

Ed McWhorter, Regional Operations Manager at Babcock & Wilcox and Western States Tripartite Contractor Chairman facilitated the meeting alongside IVP Baca.

Keynote speakers were Ian MacGregor, founder of Hydrogen Naturally, Inc., and Sarah Saltzer, PhD, managing director of the Stanford Center for Carbon Storage. MacGregor outlined the potential for large-scale Boilermaker work as hydrogen gains traction as an energy transition solution.

What we’re focusing on is the full carbon cycle, and we will be carbon negative in the hydrogen we make.

Ian MacGregor, founder, Hydrogen Naturally, Inc.

MacGregor, who is a visionary and entrepreneur, is working on a new project, Hydrogen Naturally, Inc. that will finance, build and operate hydrogen plants that use scrap wood fiber as feedstock. The goal is to remove millions of tons of CO2 from the atmosphere and make large quantities of clean hydrogen. He describes the product as “bright green hydrogen,” and his first plant is currently in planning stages in Fort Nelson, British Columbia.

MacGregor has plans to build 50 plants and estimates each plant will generate 5 million man-hours.

“Time is running out (on the climate change problem), we’ve got to get doing something,” he said. “What we’re focusing on is the full carbon cycle, and we will be carbon negative in the hydrogen we make.”

While a major undertaking, this isn’t the first time MacGregor has addressed and successfully brought a large-scale solution to life—nor is it the first time he’s worked focused on hydrogen. A previous project, the Sturgeon Refinery, which became part of North West Refining in Alberta, was the first greenfield refinery to be built in Canada since 1984 and is the world’s first refinery designed to capture CO2 process emissions from the outset.

“I like problems,” MacGregor said in describing the pitfalls and development of Sturgeon Refinery, which he believes to be the largest blue hydrogen plant in the world. “This was one of the most complicated problems I ever worked on in my life.”

Saltzer explained the role carbon capture and storage will play in California’s net-zero goal.

“I’m an all-of-the-above believer,” Saltzer said. “We need to invoke everything we can. California has some really ambitious greenhouse gas goals.” 

She said that in order to meet 2050 climate goals, 100 gigatons of CO2 has to be captured and stored. In order to do so, she noted, carbon capture needs to be included or retrofit into all industries, from energy production, refineries and cement plants to manufacturing. In the history of carbon capture and storage, only about 300 million tons have been captured and stored so far, she said.

“What’s very clear is that we have a number of challenges for CCS in California,” she said. “We need to come out and say that CCS is part of the answer, part of the solution for California. There’s a lack of public awareness and support for CCS. People don’t know what it is. We need to increase public awareness and education.”

Other presentations included an overview of CCUS and hydrogen’s future by International Director of Climate Change Policy Solutions Cory Channon; proposed California CCUS and energy legislation, by Erin Lehane, the State Building and Construction Trades Council of California’s legislative director; the latest U.S. legislation updates, by Director of Legislative Affairs Cecile Conroy; Western States forecasting and recruitment, by Marketing Manager Johnny Baca; the status of the Boilermakers apprenticeship program by WSJAP Coordinator Collin Keisling; and the EPRI Standardized Task Evaluation Program, by Adrian Hendron, technical lead, training & STE for EPRI.

Per Lorentzen, operations manager for Cherne Contracting Corp., and Mark Garrett, MOST Programs administrator, reported on health and safety as well as MOST Programs updates. 

The event also recognized and thanked SBCTC President Emeritus Robbie Hunter, who retired in 2021, and introduced Andrew Meredith as SBCTC’s new president.

“There’s so much heavy lifting that’s done by the Boilermakers in California, relating the message that needs to be related to the voters, the legislators and other policymakers about things like carbon capture and hydrogen,” Meredith told participants. “It’s heavy lifting that’s benefiting all of our affiliates.”

Rounding out a substantive day, Boilermakers, contractors and employers met in individual caucuses to identify and discuss issues to bring before the full tripartite. Representatives from each group reported on caucus discussions.

Additionally, Steve Griffin, Turnaround Improvement Campaign Manager for PBF Energy, was appointed to serve as the Western States Tripartite Owner Chairman.

Adam Gray skips vote on his own bill to suspend gas tax

Source: US National Republican Congressional Committee

The following text contains opinion that is not, or not necessarily, that of MIL-OSI –

May 25, 2022

Adam Gray failed to vote today on his OWN bill to suspend the gas tax. 

When Gray held a press conference to introduce the bill, he said:“Talk doesn’t reduce prices, actions do.” 

Now, Gray’s words and actions are now coming back to haunt him. 

California’s gas tax is set to rise by about 3 cents on July 1st to 54 cents a gallon. 

NRCC COMMENT: “Californians deserve a Congressman who will actually work to lower gas prices, not just talk about it.” — NRCC Spokeswoman Torunn Sinclair 

Rudy Salas skips ANOTHER vote to suspend gas tax

Source: US National Republican Congressional Committee

The following text contains opinion that is not, or not necessarily, that of MIL-OSI –

May 25, 2022

Rudy Salas once again failed to vote today on a measure to suspend the gas tax even though he was present at the California Legislature.

This is the fourth vote (see the other three HERE) to suspend the gas tax Salas has skipped. 

California’s gas tax is set to rise by about 3 cents on July 1st to 54 cents a gallon. 

NRCC COMMENT: “Californians pay the highest gas prices in the country, but Rudy Salas is too cowardly to buck his partyand provide his constituents relief at the pump.” — NRCC Spokeswoman Torunn Sinclair 

U.S. Department of Energy Announces $5 Million for Water Desalination and Treatment Projects

Source: US Office of Energy Efficiency and Renewable Energy

Today, the U.S. Department of Energy (DOE), in partnership with the National Alliance for Water Innovation (NAWI), announced a $5 million solicitation for small-scale desalination and water-reuse technologies that will improve the safety, security, and affordability of America’s water supply. 
The Pilot Program request for proposals (RFP) offers applicants the chance to design, build, operate, and test desalination and water reuse treatment systems that produce clean water from non-traditional water sources, such as brackish water, seawater, produced and extracted water, and wastewater.  
“The innovative desalination technologies funded through this initiative will help us build a modern water-management infrastructure that can treat a wider range of water resources and equitably deliver water when and where it is needed,” said Principal Deputy Assistant Secretary for Energy Efficiency and Renewable Energy Kelly Speakes-Backman.  
Many domestic water sources contain high levels of salt and contaminants, a problem that can be intensified by changing precipitation patterns associated with climate change. This RFP will support projects that significantly reduce the levelized cost of water for small-scale desalination systems, helping the U.S. diversify its water supplies, improve its resilience to the effects of climate change, and move closer to net-zero carbon emissions.  
Pilot projects that support the research objectives established in the NAWI Roadmap Publication Series stand the best chance of receiving an award. NAWI will ultimately select 6-8 research teams from industry, academia and the U.S. National Laboratories, with a minimum 35% cost share required from each team. 
Concept papers are due by Wednesday, June 29, 2022. To learn more, read the full request for proposals. 
NAWI is a public-private partnership that brings together a world-class team of industry and academic partners to examine the critical technical barriers and research needed to radically lower the cost and energy of desalination. NAWI is led by DOE’s Lawrence Berkeley National Laboratory in collaboration with National Energy Technology Laboratory, National Renewable Energy Laboratory, and Oak Ridge National Laboratory, and is funded by the Office of Energy Efficiency and Renewable Energy’s Advanced Manufacturing Office.

Statement on Proposed Rule Requiring Enhanced Disclosure by Certain Investment Advisers and Investment Companies on ESG Investment Practices

Source: Securities and Exchange Commission

The role of Environmental, Social, and Governance issues – or “ESG” – in investing has undeniably changed over time.[1] Investor demand for products and strategies that take into account ESG factors has increased dramatically over the past decade.[2] And, the asset management industry has responded to meet that demand.[3]

But the products and services offered are as diverse as the ESG nomenclature, with different funds and advisers focusing on different ESG factors, ascribing different import or weight to those factors, and setting different ESG goals (or no goals at all). And, funds and advisers employ diverse approaches to engaging with investee companies on ESG issues, such as using proxy voting, engaging management, or playing a more passive role by relying on ESG indices or third party service providers.

In the absence of a specific disclosure regime, funds and advisers employing ESG practices do not have clear guidance as to what information should be disclosed and in what manner. Additionally, with the spike in investor ESG demand, funds and advisers may be incentivized to overemphasize the role that ESG factors play in their portfolio management decisions. In other words, managers may use “ESG,” and loosely defined terms such as “sustainable” and “green,” as more marketing tool than investment thesis.[4] Indeed, our Division of Examinations has made such findings in the field, noting in an alert last year that staff were observing, for example: portfolio management practices that differed from client ESG disclosures; misleading claims relating to ESG approaches; and, proxy voting practices that were inconsistent with advisers’ stated approaches.[5]

And, with this absence of a cohesive framework, investors are left without accurate, reliable and comparable ESG disclosures that would allow them to: understand how funds and advisers are incorporating ESG factors into investment strategies; substantially differentiate between investment products; and, measure whether funds and advisers are meeting their stated goals.

Today’s proposed rule aims to address these problems.

A few general points on the proposal. First, as I noted, the proposal strives to achieve the goals of accuracy, reliability and comparability among the various ESG asset management practices and products. Clear and standardized disclosures allow investors to compare products and accurately price risks and opportunities associated with ESG practices.[6] This favors not only the investor who places a premium on ESG investing, but also potentially the investor who thinks an ESG issue is being overpriced. In other words, transparency around ESG, which is now a mainstream factor in investing, brings benefits to a variety of investors, and not just those who place a social benefit on ESG.

Second, the proposal fits within the Commission’s long-standing and well-established framework of requiring disclosure of material information to investors for decision-making. For example, funds have long been required to provide important information about a fund’s fundamental characteristics including investment objectives, strategies, risks and governance; and, registered advisers are required to provide key information about their methods of analysis and investment strategies.[7] Today’s proposal would fit ably within the existing regime.

Third, the rule is neutral as to the benefits or risks of ESG investing. The Commission’s interest is in the reliability and sufficiency of adviser and fund disclosures to investors and in providing a consistent and coherent framework in which investors can make informed investment decisions. In proposing today’s rule, the Commission is not weighing in on the advisability of ESG investing, or second-guessing the investment strategies of managers and funds. Rather, the proposal seeks to align investor expectations with manager practices through disclosure. I said it moments ago when we were discussing the Names Rule, but it bears repeating – investors have a right to know what they are investing in.

Turning to the proposed rule itself. Today’s proposal would require meaningful specific disclosure regarding ESG strategies in registration statements, the management discussion of fund performance in annual reports, and in adviser brochures, among other changes to certain advisor forms.[8] The level of detail required of any given fund or adviser will depend on the extent to which such manager considers ESG factors in its decision-making.

For “ESG-focused” funds – or those funds that either employ one or more ESG factors as a significant or primary component in their investment process or in their engagement with investee companies (or, funds that markets themselves as such) – we are today proposing certain minimum disclosure requirements. So, for example, a fund that has a stated strategy of achieving a certain ESG impact, would have to provide disclosures in their annual reports that summarize its progress in achieving those impacts in both qualitative and quantitative terms. As another example, if an ESG-focused fund states that it employs a proxy voting strategy, or will seek engagement with an issuer’s management as a means to implement its ESG strategy, today’s rule would require that fund to disclose information on how it voted ESG issues in proxies, or how it actually engaged management. Finally, ESG-focused funds will have to disclose standardized GHG emission metrics in the Fund’s annual reports, giving investors a meaningful metric to compare funds and a tool to potentially meet their own goals.

For “ESG integration” funds – or funds that consider one or more ESG factors among other factors in their investment process – today’s proposed rule would require more limited disclosure around how the fund incorporates ESG factors into its investment selection process. To the extent that an integration fund considers GHG emissions of portfolio holdings, such fund must describe how it considers those emissions and what methodologies it employs in measuring those emissions.

Note, however, the proposal does not require standardized quantitative disclosure of GHG emissions from integration funds that consider such emissions in investing, and I hope the public will comment on whether such standard quantitative metrics would be useful and should be required.

Finally, the proposed rule would also enhance regulatory reporting and require certain disclosures to be in structured data language, which will allow for better data analysis and industry trend reporting in the future.

The proposed rule takes a meaningful step toward giving investors the transparency they need to understand how funds and advisers are using ESG factors in their investment decisions, and to reign in marketing practices of exaggerating the use of ESG to attract business, and I am pleased today to support it. I look forward to hearing from the public on this proposal.


I would finally, once again, like to thank our staff from the Division of Investment Management, the Division of Economic and Risk Analysis, and the Office of the General Counsel for their tremendous work on this proposed rule. The final proposal reflects your careful consideration and steadfast efforts, and is a testament to your continued commitment, for which I am ever grateful. So, thank you. And, once again, I would like to extend my gratitude to the Chair and his staff for their leadership on this, and the other many rules that we have proposed.

[1] Proposed Rule, Enhanced Disclosures by Certain Investment Advisers and Investment Companies about Environmental, Social and Governance Investment Practices, Rel. No. IA-6034 at 12-13 (May 25, 2022) (hereinafter the Proposed Release).

[2] See, e.g., id. at 7 and n.2 (citing U.S. Sustainable Investing Forum, The Report on U.S. Sustainable and Impact Investing Trends (Nov. 16, 2020)), and at 12-13 (noting the results of one survey indicating 42% of institutional investors say they consider ESG factors in investment decision making, and another survey of professional fund selectors and institutional investors noting that 75% and 77% respectively believe consideration of ESG factors is integral to investment decision making). See also PRI Annual Report 2021 (noting “[R]esponsible investment is no longer seen as a fringe topic, but is now a mainstream investment issue. Indeed, the PRI now has 3826 signatories (3404 investors and 422 service providers), representing collective assets under management of just over US$121 trillion as of 31 March 2021.” And, “PRI’s global signatory base represents more than half the world’s institutional assets.”); Edward Herilhy and Martin Lipton, Annual Meetings and Activism in the Era of ESG and TSR (harvard.edu) (May 19, 2022) (noting major asset managers have with increasing frequency been supporting activists on ESG issues); BlackRock 2020 CEO and Chairman’s annual letter (“[C]limate change is almost invariably the top issue that clients around the world raise with BlackRock.”); The Law and Economics of Environmental, Social, and Governance Investing by a Fiduciary (harvard.edu) (citing Goldman Sachs piece, “ESG investing, once a sideline practice, has gone decisively mainstream.”).

[3] See, e.g., The Division of Examinations Review of ESG Investing (April 9, 2021) (“In response to investor demand, investment advisers and funds have expanded their various approaches to ESG investing and increased the number of product offerings across multiple asset classes.”); U.S. Securities & Exchange Commission, Asset Management Advisory Committee, Recommendations for ESG (July 7, 2021) (“ESG investing has grown significantly in recent years; according to the ICI, ‘socially conscious’ registered investment products grew from 376 products/$254 billion in assets under management (‘AUM’) at the end of 2017 to 1,102 products/$1.682 trillion in AUM by the end of June, 2020.”); Boffo, Riccardo and Patalano, Robert, “ESG Investing: Practices, Progress and Challenges”, OECD, (2020) (noting that the “amount of professionally managed portfolios that have integrated key elements of ESG assessments exceeds USD 17.5 trillion globally, by some measures”).

[7] See, e.g., Proposed Release at 8 n.5, 17; Investment Company Act (“ICA”) Release No. 23064 (Mar. 13, 1998) (Form N-1A amendments focusing on prospectus disclosure); ICA Release No. 13436 (Aug. 12, 1983) (adopting Form N-1A); Investment Adviser Act (“IAA”) Release No. 3060 (July 29, 2010) (amending the Form ADV Part 2 “brochure” including disclosure on investment strategy); see generally 15 U.S.C. 80b-6 (imposing a fiduciary duty on investment advisers to provide full and fair disclosure of all material facts relating to the advisory relationship and imposing antifraud liability).

[8] Proposed Release at 20.

A Rose By Any Other Name: Statement on Proposed Amendments to the Names Rule

Source: Securities and Exchange Commission

As the saying goes – you should mean what you say, and say what you mean.  In some ways, this simple refrain summarizes the backbone of our disclosure regime and the impetus behind the Names Rule and today’s proposed amendments to that rule. 

As the adopting release notes:  “A fund’s name is often the first piece of fund information investors see and, while investors should go beyond the name itself and look closely at the fund’s underlying disclosures, a fund’s name can have a significant impact on their investment decisions.”[1]

Whether consciously or unconsciously, a thing’s name forms our expectations.  If you go to an ice cream truck on a hot summer day, and order a chocolate ice cream cone, you have a certain expectation of what you are going to get.  It will be cold; it will be sweet; it will probably be brown in color.  There may be variations of what the exact ingredients are, where they come from, or the exact measurements.  But we, the ice cream-consuming public, have a general idea of what we are going to get.

The same is true today of certain types of funds.  A “Growth Fund” brings with it an industry expectation of the types of investments that fund will make – investments in companies, (often emerging companies) seeking above-average growth through capital appreciation and reinvestment, with little or no expectation of dividends.[2]  As the adopting release notes, the word “Growth” appears in approximately 8.2% of fund names, and I suspect that investors in those Growth Funds have a certain expectation about what they are investing in.[3]  Likewise, a name can also bring an expectation about what a fund is not investing in.  Here, I suspect investors who put their money into a “Cat and Dog” fund are generally not expecting to be invested in guinea pigs and gerbils.  

Today’s proposed rule is a step in the right direction in bringing market practices in line with investor expectations.[4]  It does so in a number of ways.  For example,

  • Most prominently, where a fund’s name suggests a certain investment focus – such as “growth,” “value” or by reference to one or more ESG factors – that fund must adopt a policy requiring that 80% of the value of its assets be invested in a manner consistent with that fund’s name.  The funds captured by the proposed amendment today would join other types of funds required to adopt an 80% policy, including funds whose names indicate a focus in a particular type of investment, a particular industry, or a particular geographic focus.[5]  The rule also lays out when a fund can temporarily deviate from the 80% policy, and the parameters for coming back in line with the policy “as soon as reasonably practicable,” usually with a maximum departure of 30 days. 
  • The proposal requires that naming conventions that suggest an investment focus be in Plain English or in line with established industry use,[6] and that fund prospectuses define the terms used in its name. 
  • The proposed rule would add a new provision making clear that compliance with the Names Rule is no safe harbor against fraud.  Thus, a fund name can be materially misleading even if the fund technically complies with the Names Rule.[7] 
  • Further, the proposed amendment clarifies that it would be materially misleading for a fund to use an ESG factor in its name, if that factor does not play a central role in the fund’s investment strategy. 

The proposed rule also gives clarity to funds and managers by providing, for example, rules around the treatment of derivatives and by updating the provisions on notice, reporting and recordkeeping requirements, among other changes. 

The Names Rule has not been amended since its adoption in 2001.[8]  The industry has changed significantly in two decades.  The amount of money in registered investment companies has tripled; ETFs, alternative strategy funds, and indexed products have become commonplace in the portfolios of everyday investors; ESG and sustainable investing has taken a prominence previously unseen; and thematic investing, such as by reference to block chain or cybersecurity is growing.[9]  The need for clarity in the funds industry is more important than ever. 


“What is in a name?” Juliet famously asked in Shakespeare’s Romeo & Juliet.  “A rose by any other name would smell as sweet.”[10]  That is of course true, and perhaps even a poetically perfect line.  But in the world of investing – the world of retirement accounts, college savings accounts, and accounts for buying your first home – there is simply quite a lot riding on a name.  Here it is fair for investors to expect clarity, consistency and forthright naming conventions.  Simply put, investors should know what they are investing in.  Today’s proposed rule is a step in the right direction of bringing market practices in-line with investor expectations. 

I want to conclude by thanking all of the industry participants who wrote letters and contributed comments to the RFC put out by the Commission in 2020.  Your participation in our process is integral in helping my staff, staff in the Division of Investment Management, and me better understand industry practices and how we can improve our regulations to protect and serve investors.  And, now that we have a proposal, I again encourage all industry participants to do just that again – participate!  Please provide feedback on this proposal.

I also want to thank Chair Gensler and his staff for their leadership on today’s important proposed amendment.  Finally, and perhaps most importantly, I want to thank the staff in the Division of Investment Management, the Division of Economic and Risk Analysis, and the Office of General Counsel, who have worked tirelessly in drafting and editing not only today’s proposed rule, but many others over the past months.  I think the quality of today’s proposed rule reflects the high caliber of work ethic, professionalism and dedication of the staff, and we are very fortunate for your ongoing commitment to the agency and our mission.  Thank you.


[1] Investment Company Names, Investment Company Act Release No. IC-34593 at 5-6 (proposed May 25, 2022) [hereinafter the Proposed Release].  “Funds” as referred to herein, as well as in the Proposed Release refers to registered investment companies and business development companies.  Id. at 5, n. 1.

[2] Indeed, Oxford’s dictionary defines a growth fund as “a mutual fund that invests primarily in stocks that are expected to increase in capital value rather than yield high income.”  Oxford Languages, Oxford University Press (2022).

[3] Proposed Release at 119. 

[4] Section 35(d) of the Investment Company Act prohibits a registered investment company from using a name that the Commission finds materially misleading or deceptive.  Congress authorized the Commission to define by rule, regulation or order, what names would be materially deceptive or misleading.  15 U.S.C. 80a-34(d). 

[5] See Investment Company Names, Investment Company Act Release No. 24828 (Jan. 17, 2001).

[6] Plain English requirements can be found in many places in the securities laws, intending to make the statements of issuers and registrants more accessible to all investors.  See, e.g., 17 C.F.R. 240.13a-20 (requiring all reports filed under Section 13(a) of the Securities Exchange Act of 1934 to be “presented in a clear, concise and understandable manner.”)  The SEC, like industry participants, has Plain English obligations as well.  See The Plain Writing Act of 2010, P.L. 111-274.

[7] Funds and managers are subject to Investment Company Act Section 35(d) and the antifraud provisions of the securities laws. See, e.g., 15 U.S.C. 77q(a); 17 CFR 240.10b-5(b); 17 CFR 230.156; and 17 CFR 275.206(4)-8.

[8] See Investment Company Names, Investment Company Act Release No. 24828 (Jan. 17, 2001).

[9] Proposed Release at 12-13, nn.21-22 (noting developments and listing comment letters). 

[10] William Shakespeare, Romeo & Juliet, Act 2, Scene 2.

Statement on Investment Company Names

Source: Securities and Exchange Commission

Thank you, Mr. Chair, and thank you to the staff in the Divisions of Investment Management and Economic and Risk Analysis, and the Office of the General Counsel, and to others at the Commission who worked on this proposal. Thank you for meeting demanding deadlines under considerable pressure and for fielding my many questions with unwavering professionalism. Despite my admiration for the effort that went into this initiative and my appreciation for some of the motivating concerns, I cannot support today’s proposed amendments to the Names Rule.

A fund’s name helps investors cut through the jungle of investment company options available to them. It only does so, however, if it accurately describes the fund. Section 35(d) of the Investment Company Act, which outlaws “deceptive or misleading names,”[1] and the Names Rule, which the Commission adopted in 2001, recognize the outsized role a fund’s name plays in the investment selection process.[2] Of course, even a perfectly fitting name carries only a bit of information about a fund, and we must encourage investors to look beyond names to fund disclosure documents.

In the twenty-one years since the Names Rule’s inception, much has changed in the mutual fund industry and the way investors consume information. Revisiting Rule 35d-1 to see if it is performing for investors as designed and, if not, issuing additional guidance or even amending the rule makes sense. Hence, the Commission’s March 2020 request for comment on the rule.[3] I therefore was hoping to be able to support the proposal to amend to the Names Rule. The proposed amendments, however, may create more fog than they dissipate and may place unnecessary constraints on fund managers. Accordingly, I cannot support it.

I have several concerns. First, the application of the 80% investment policy requirement to names suggesting that a fund focuses on investments with “particular characteristics,” most prominently, those associated with ESG, will rely on subjective judgments. Given the breadth of terms such as ESG, growth, and value, how will industry implement the rule and how will we enforce it without engaging in Monday morning asset managing? The inability to draw discernible boundaries around a centrally important term renders creative enforcement actions based on second-guessing in hindsight almost inevitable. Applying the Names Rule to investment strategies, which is essentially what the proposal would do, may have the detrimental effect of forcing homogeneity in the way funds are managed. A better approach—one that many commenters in response to the Request for Comment suggested—would be to require better disclosure in the fund prospectus about the strategies managers use.

Second, the proposal would unduly constrain advisers’ ability to make decisions that are best for the funds they manage. To address concerns prompted by fund names becoming less indicative of fund investments over time, the proposal describes particular circumstances when a fund may be outside the 80% investment parameters, as well as proposing strict time frames for a fund to return to compliance. The proposal would put a strict 30-day time limit on temporary departures from the 80% rule. The release acknowledges that some fund investors might prefer a bit of give on the 30-day limit to allow managers room to minimize or avoid loss. The consequence of this intentionally inflexible approach may include inducing portfolio managers to make undesirable investments in order to remain in compliance with the rule or forcing funds to shut down in times of even relatively short-lived market stress. Would a fund with an emphasis on emerging markets in central Europe have been able to get right with this rule 30 days following Russia’s invasion of Ukraine? The rule also requires that a fund with multiple elements of focus in its name must have investments in all the elements, which again unnecessarily constrains decision-making. Such a requirement encourages more generic names so that managers can preserve flexibility in their portfolio management, but more generic names are less informative for investors.

Third, the outright prohibition on integration funds’ use of ESG in their names could result in substantive changes in the way some funds are managed. The proposal would deem integration funds incorporating ESG terminology in their names as per se materially deceptive or misleading. Integration funds are funds for which ESG factors are considered alongside, but have no more significance than, non-ESG factors in the fund’s investment decisions. So, putting this proposal together with the accompanying ESG disclosure proposal—spoiler alert—generates a puzzling result: integration funds would have heightened disclosure obligations, but would be unable to use their name to signal to investors that they are integrating ESG. Some advisers may choose to convert their integration funds into ESG-focused funds, which will decrease options for investors. Or an adviser might try to run from ESG to avoid the heightened disclosure requirements.

Finally, the proposed one-year implementation period is too short given the number of funds that may have to make adjustments in their portfolios or change their names.

I look forward to hearing what commenters have to say on these and other issues, including the treatment of derivatives for purposes of calculating adherence to the 80% test and the shareholder notice requirements.

I will conclude by once more thanking Commission staff for their efforts. In addition, I want to thank commenters who responded to our Request for Comment. I look forward to hearing from commenters on whether the proposal strikes the right balance in ensuring that fund names accurately represent fund holdings without unnecessarily constraining fund managers’ options.

[1] Section 35(d) provides: (d) DECEPTIVE OR MISLEADING NAMES.—It shall be unlawful for any registered investment company to adopt as a part of the name or title of such company, or of any securities of which it is the issuer, any word or words that the Commission finds are materially deceptive or misleading. The Commission is authorized, by rule, regulation, or order, to define such names or titles as are materially deceptive or misleading.

[2] See Investment Company Names, Investment Company Act Release No. 24828 (Jan. 17, 2001) (to be codified at 17 C.F.R. pt. 270).

[3] See Request for Comments on Fund Names, Investment Company Act Release No. 33809, 85 Fed. Reg. 13221 (Mar. 6, 2020), https://www.sec.gov/rules/other/2020/ic-33809.pdf.