This week the Food and Drug Administration (FDA) came out with a series of rather graphic pictures meant to dissuade folks from smoking. You may have seen them. If you did you’ll certainly remember them. If you didn’t, well, I always write for the family audience and it just wouldn’t be appropriate for me to describe them. Suffice it to say, they include plenty of real life medical afflictions. If you have a queasy stomach, don’t look at them. And don’t smoke, too.

It took about three generations for cigarette smoking to go from “therapeutic” to “life-threatening.” Despite the many scientific studies showing its link to cancer, an assertive marketing campaign on the part of the tobacco industry and the associated political campaign allied with it effectively thwarted early efforts. For a long time, regular people just didn’t believe smoking could have been that bad. Even worse, when the final nail in the coffin (pun intended) eventually did arrived, it didn’t come from hard science (as it should have), it came from a gaggle of trial attorneys.

Sound familiar? We are just now seeing evidence from academic studies suggesting the harm caused by the lack of a fiduciary standard. No doubt some smart researchers are working on similar projects – or are they? Most of this research is funded by the DOL. What if these studies, in addition to supporting the fiduciary standard, also begin to show only certain fees (and not the most often cited fees) most hurt investor performance? Will the DOL, who’s lately been on a kick to highlight fees, move its research dollars elsewhere?

It’s much more fun, however, to begin to imagine the DOL being as aggressive as the FDA. What kind of pictures would it show? Would it show granny working at the grist mill while her retirement plan’s non-fiduciary adviser sips a Mai Tai at some Caribbean pool-side bar? Or, how about this one: a worker running a furiously as a gerbil inside a spinning wheel, pumping more and more dollars into a retirement plan doomed to fail as non-fiduciary advisers siphons off fees (one for you, two for me,.. one for you three for me…).

Will this imagery work? Maybe, maybe not, but something is needed. A recent survey shows that just under 50% of investors would be “uncomfortable” with a fiduciary standard. Consider that for a moment. It’s like saying half the people in the world are “uncomfortable” with a cure for polio. Jonas Salk wouldn’t be the only person to question the intelligence of that half of the population. (Sure, you can make arguments about the need for disease as a preventative measure against world overpopulation, but that would be oh-so ’70s.)

This goes beyond a marketing problem for advocates of the fiduciary standard. No doubt much of this distrust stems from a general distrust (growing in recent years) of government. But even the distrust of government argument does not allow for the status quo. We currently have two different sets of standards offering the same (perceived) product to the same market. With or without government distrust or market apathy, this situation is just not fair.

The business of trust – in the fiduciary sense – has been a social contract for almost eight full centuries. We have relied on civil legislation to define the parameters within which this service can and ought to be delivered. Such regulation came about due to (at first) atrocities and (later) fraud committed against beneficiaries. If we don’t level the playing field and apply the 1940 Investment Advisers Act to all those offering (even incidental) investment advice, we may as well scrap the whole thing and return to the wild west of the pre-Depression days.

Instant Insights /

Educating ERISA Investors on the Fiduciary Standard: What if the DOL was as aggressive as the FDA?

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