Send an e-mail to a single retirement plan participant client recommending investments and the advisor would be subject to the proposed Department of Labor’s fiduciary rule.

Send the identical e-mail to two or more clients and the rule may not apply because the communication could be considered a newsletter, DOL told Financial Advisor magazine.

The exclusion for a “general circulation newsletter” appears in the 120-page proposal unveiled last Tuesday, but nowhere is the term defined.

The response from DOL to a Financial Advisor magazine reporter shows the Department plans to view the exemption broadly.

A “newsletter” could be an e-mail sent to more than one client, and to be called “general circulation,” it doesn’t have to go to non-clients as well.

The proposal consistently states that the fiduciary obligation to act in a client’s best interest is for advice tailored to an individual client.