Guest Expert: Michelle Atlas-Quinn, J.D., AdvisorLawThe Investment Advisers Act Marketing Rule in 2026
The SEC’s modernized Investment Adviser Marketing Rule gives registered investment advisers considerably more flexibility than the former ad...
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The Investment Advisers Act Marketing Rule in 2026
The SEC’s modernized Investment Adviser Marketing Rule gives registered investment advisers considerably more flexibility than the former advertising and cash-solicitation rules, particularly in the use of testimonials, endorsements, third-party ratings, and digital communications. That flexibility, however, comes with detailed disclosure, oversight, substantiation, recordkeeping, and procedural obligations.
During this session, securities attorney Michelle Atlas-Quinn explained that regulators are no longer treating the rule as a new compliance initiative. Examiners now expect firms to have functioning marketing controls, trained reviewers, complete records, accurate Form ADV responses, and evidence that their procedures have been tested. Michelle noted that marketing has been examined in every SEC review her team had recently encountered, with regulators requesting not only copies of advertisements but also proof of review, approval, substantiation, revision history, vendor oversight, and annual testing.
That emphasis is consistent with current SEC activity. The Division of Examinations issued additional Marketing Rule observations in June 2026 focusing on testimonials, endorsements, third-party ratings, disclosure practices, oversight, and due diligence. The SEC also continues to publish Marketing Rule FAQs and bring enforcement cases involving unsubstantiated claims, improper performance presentations, deficient testimonials and endorsements, and misleading ratings.
The session’s central message was practical: advisers are permitted to market creatively, but every material statement should be supportable, every required disclosure should be clear and timely, and every marketing channel should be incorporated into a documented compliance system.
Key Topics and Expanded Insights
1. Begin by Determining Whether a Communication Is an Advertisement
The Marketing Rule applies only if a communication falls within the rule’s definition of an “advertisement.” That determination should be the first step in every review.
In general, the definition covers a direct or indirect communication by an investment adviser that:
The definition also covers compensated testimonials and endorsements, including certain solicitation and lead-generation arrangements. The rule contains exclusions and nuances for some one-on-one communications, extemporaneous live oral communications, and communications that do not offer advisory services. Advisers should therefore avoid using an overly simple rule such as “anything sent to two people is always an advertisement” without examining the full regulatory definition and applicable exclusions.
Communications that may qualify
Examples discussed during the webinar included:
An adviser who says, “We do not advertise; we only have a website and accept referrals,” may still have significant Marketing Rule exposure. A website generally promotes the firm’s services, and referral arrangements may become endorsements subject to compensation and disclosure rules.
Existing-client communications
A purely educational economic or market update sent only to existing clients may fall outside the advertisement definition when it does not offer new services. Even so, Michelle recommended reviewing and archiving these communications. Examiners may request them, and the firm should be able to demonstrate why it concluded that they were not advertisements.
Branding versus advertising
A firm name and logo on a youth sports jersey, school program, or charitable sponsorship may be simple branding rather than an offer of advisory services. The analysis can change if the message adds promotional language, promises results, describes services, or encourages recipients to hire the adviser.
Advisor takeaway: Create a written classification process that distinguishes advertisements, branding, client-service communications, and other excluded communications. Preserve the analysis when the classification may not be obvious.
2. The Seven General Prohibitions Apply Across Marketing Channels
Regardless of the marketing format, an advertisement may not contain materially misleading content. The rule’s general prohibitions apply to websites, email, social media, video, brochures, presentations, and other covered communications.
The Marketing Rule prohibits advertisements that:
Materiality and reasonable interpretation
A statement can be misleading even when technically accurate. Reviewers should consider what a reasonable investor—rather than an industry insider—would understand.
Examples include:
Substantiation files
Michelle emphasized that firms need not necessarily include every source in the advertisement itself, but they should maintain evidence supporting objective claims.
A substantiation file might include:
One attendee described a California examination in which the regulator required proof of college graduation, decades-old publications, and university teaching experience. Although that level of scrutiny may appear extreme, it illustrates why every factual biography and website claim should be supportable.
Advisor takeaway: Treat every objective statement as if an examiner will ask, “Show me the evidence.”
3. Testimonials and Endorsements Are Permitted—but Closely Regulated
The Marketing Rule removed the former blanket prohibition on testimonials and endorsements. Firms may now use them if they satisfy disclosure, oversight, disqualification, and—in many compensated arrangements—written-agreement requirements.
Testimonial versus endorsement
A testimonial generally involves a current client or private-fund investor describing their experience with the adviser, recommending the adviser, or soliciting others to become clients.
An endorsement generally comes from someone other than a current client or investor and may include:
A CPA, attorney, consultant, influencer, athlete, or lead-generation firm may therefore be an endorser.
Clear and prominent disclosures
At the time the testimonial or endorsement is disseminated, disclosures generally must identify:
Additional disclosures must describe the material terms of compensation and relevant conflicts in greater detail.
The adviser must either provide the required disclosures itself or reasonably believe that the promoter provides them properly.
Google and other online reviews
A review posted independently on a third-party platform is not necessarily content the firm controls. However, once the adviser republishes it on the firm website, social media, or marketing materials, the firm has adopted it and should apply the testimonial requirements.
A properly presented review might state directly beneath it:
When compensation or another benefit exists, the disclosure must explain it accurately.
Cash and non-cash compensation
Compensation can include more than direct payments. The session identified:
A reciprocal referral arrangement with an attorney or CPA may constitute indirect or non-cash compensation. The firm should assess the expected economic value and document its conclusions.
Written agreements and de minimis compensation
A written agreement is generally required when compensation exceeds the rule’s de minimis threshold of $1,000 or more during the preceding 12 months. Advisers should verify the rule’s precise wording and calculate both cash and non-cash value rather than relying on informal estimates.
Ineligible promoters
Certain disciplinary events can disqualify a promoter. Firms should perform and document background checks appropriate to the arrangement, including reviews of:
The adviser must also maintain reasonable oversight of the testimonial or endorsement program.
Internal personnel
Testimonials or endorsements by firm personnel and certain affiliates receive different treatment when the relationship is readily apparent or disclosed. A hidden ownership relationship—such as a non-obvious 10% owner recommending the firm—should be disclosed.
Advisor takeaway: Do not treat testimonials as isolated quotes. Build a promoter file containing the agreement, disclosures, compensation analysis, eligibility review, approval, monitoring, and copies of every use.
4. Referral Networks and Lead-Generation Firms Require Ongoing Oversight
Purchasing leads does not shift compliance responsibility to the vendor.
When a third party markets or solicits prospective clients for the adviser, the firm should understand:
The session specifically addressed internet and Facebook leads. An adviser purchasing those leads should obtain and retain the advertisements, the vendor contract, relevant due diligence, compensation information, and evidence of ongoing monitoring.
The SEC’s June 2026 Risk Alert highlighted deficiencies involving inadequate promoter disclosures, failure to oversee promoters, and weak third-party-rating due diligence.
Advisor takeaway: Review referral and lead-generation arrangements at onboarding and periodically thereafter. A “set it and forget it” approach is unlikely to satisfy the rule.
5. Performance Advertising Demands Particular Precision
Performance marketing presents some of the rule’s highest compliance risk.
Gross and net performance
An advertisement generally may not present gross performance unless it also presents net performance:
A firm may show net performance alone. It may not ordinarily show gross performance alone.
The SEC’s Marketing Rule FAQs, updated in January 2026, provide additional staff guidance on calculating and presenting net and gross performance, including model fees and portfolio or investment-level presentations.
Net performance should reflect the fees and expenses required by the rule and should not create a misleading impression about what the investor would have earned. When an adviser presents a third-party manager’s performance, it should clearly explain what fees are already deducted and what additional advisory fees the client would pay.
Prescribed periods
For most non-private-fund performance advertisements, the rule generally requires one-, five-, and ten-year results, or performance for the life of the portfolio when it has not existed for the full period. The periods must end on a date no less recent than the end of the most recent calendar year.
Related performance and cherry-picking
An adviser generally cannot select only its best-performing account or strategy while omitting materially related portfolios. Related performance should include all related portfolios unless the exclusion of a portfolio would not produce materially higher performance and the presentation otherwise complies with the rule.
The broader fair-and-balanced requirements also prohibit highlighting successful recommendations while ignoring materially relevant unsuccessful advice.
Extracted performance
Extracted performance isolates part of a portfolio—for example, the bond sleeve of a balanced strategy. It may be presented only under applicable conditions, including offering or providing the performance of the full portfolio from which the extracted performance was derived.
Predecessor performance
An adviser may sometimes advertise performance achieved at a previous firm, but only when it can satisfy the applicable continuity and documentation requirements. Relevant factors include:
GIPS
Global Investment Performance Standards verification may strengthen credibility and institutional due diligence, but GIPS verification does not replace compliance with the SEC Marketing Rule. It is not universally required for advisers advertising performance to retail investors.
Advisor takeaway: Performance advertising should be reviewed by someone who understands both the Marketing Rule and the underlying calculation methodology.
6. Hypothetical Performance Requires Tailored Policies and Audience Analysis
Hypothetical performance includes model results, back-tested performance, and targeted or projected returns. It is not prohibited, but advisers generally must adopt and implement policies and procedures reasonably designed to ensure that the presentation is relevant to the likely financial situation and investment objectives of the intended audience.
The adviser must also provide enough information for the audience to understand:
The SEC has brought multiple enforcement actions against advisers that posted hypothetical performance publicly without adequate policies and procedures. In 2023, nine firms paid combined penalties of $850,000 in a Marketing Rule sweep focused on hypothetical performance. Additional cases followed in 2024.
One-on-one client requests
The transcript discussed a client asking, “If my portfolio repeats its past performance, can I retire?” Firms should be careful here. The rule contains exclusions for certain one-on-one communications made in response to unsolicited investor requests, but the precise treatment can depend on the type of hypothetical information and the recipient. The adviser should preserve the client’s request and document why the communication qualified for an exclusion.
Public website risk
Posting back-tested or model performance publicly creates considerable risk because the adviser may be unable to demonstrate that the presentation is relevant to the financial circumstances and objectives of every potential website visitor.
Advisor takeaway: Do not publish hypothetical results simply because the mathematics are accurate. Begin with the intended audience, delivery method, policies, assumptions, limitations, and documentation.
7. Third-Party Ratings Must Be Genuine, Current, and Explained
Awards such as “Top Adviser,” “Five-Star Wealth Manager,” or “Best Financial Firm” may be used only when the adviser satisfies the rule’s due-diligence and disclosure requirements.
The adviser must have a reasonable basis to believe that the survey or questionnaire:
The advertisement must clearly and prominently disclose:
Rankings based only on AUM
If a local publication ranks firms solely by assets under management, the advertisement should say so. Presenting the award as a measure of service quality, client satisfaction, or investment performance would be misleading if those factors were not evaluated.
Pay-to-play awards
A firm may sometimes use a paid award if the payment and methodology are fully disclosed and the presentation is not misleading. However, paying thousands of dollars for a five-star designation based on no meaningful evaluation creates substantial reputational and regulatory risk.
Outdated awards
An old accolade cannot be displayed as though it remains current. Email signatures, websites, brochures, and social profiles should all identify the year and evaluation period.
Enforcement example
In September 2024, the SEC announced settled charges against nine advisers for Marketing Rule violations involving untrue or unsubstantiated statements and deficient testimonials, endorsements, or third-party ratings. The firms paid a combined $1.24 million in civil penalties.
Advisor takeaway: Before displaying an award, obtain the methodology, survey, applicant universe, payment information, evaluation period, and permission to use the designation.
8. Social Media Creates “Adoption” and “Entanglement” Risks
Social media content can become the adviser’s responsibility even when it originates elsewhere.
Entanglement
A firm may become responsible for third-party content when it participates in preparing, editing, encouraging, or shaping the content.
Adoption
A firm may adopt content by:
A live television or radio interview may receive treatment as an extemporaneous live oral communication. Once edited, archived, clipped, or republished, however, it becomes reviewable marketing content for which the adviser is responsible.
Personal LinkedIn pages
A supervised person’s “personal” LinkedIn page can become firm marketing when it describes the adviser’s services, experience, credentials, or investment views. Firms should:
Podcasts and radio programs
A live broadcast may have limited practical flexibility because statements cannot be edited before dissemination. The firm should still retain the recording and preferably a transcript. If the program is later published as a podcast, the firm should review and edit the recorded version before publication.
Advisor takeaway: The act of reposting or linking can turn third-party content into the adviser’s own marketing responsibility.
9. Educational Content Is Lower Risk, Not No Risk
Articles, blogs, videos, podcasts, and seminars may be educational while still serving a marketing purpose by establishing the adviser as an expert.
Educational content should therefore still be:
A video emailed to clients about Long-Term Care Awareness Month may be an advertisement if it promotes an additional service or product. A general educational explanation may carry less risk than a direct recommendation, but it should still be reviewed.
Advisor takeaway: “Educational” is not an automatic exemption. Review the audience, purpose, content, and call to action.
10. Books and Records Must Reconstruct the Full Marketing History
The books-and-records requirements are central to examination readiness. Advisers generally must retain covered advertisements and the supporting records required by Rule 204-2, typically for at least five years, with the first two years in an appropriate office of the adviser.
Records may include:
Website change logs
Michelle recommended maintaining a website change log that records:
A sole proprietor can maintain a relatively simple process using dated PDFs, spreadsheets, website-archiving tools, or services such as Global Relay. The system does not need to be elaborate, but it must demonstrate genuine review rather than undocumented reliance on memory.
11. Compliance Procedures Must Match the Firm’s Actual Marketing Program
SEC-registered advisers must adopt and implement written policies and procedures reasonably designed to prevent Advisers Act violations and review them at least annually.
For marketing, those procedures should address:
Tailored review workflows
Pre-approval is not necessarily mandated for every communication. A firm may determine that a low-risk, third-party economic newsletter can receive periodic post-use review after the reviewer has assessed multiple editions. More complex content—performance, client testimonials, awards, or newly introduced services—may require formal pre-approval.
The key is that the workflow must be reasonable, documented, and followed.
Marketing and compliance coordination
A recurring deficiency occurs when marketing launches a new campaign without notifying compliance. Before using a new channel or arrangement, firms may need to:
Advisor takeaway: Compliance should be involved during planning, not after content has gone public.
12. Form ADV Must Accurately Reflect Marketing Practices
Form ADV Part 1A asks advisers about specific marketing practices, including the use of:
Examiners often compare the firm’s ADV responses with its website, social media, contracts, and document-production answers. Inconsistencies may produce deficiencies even when the underlying marketing could otherwise have been permissible.
A paid testimonial subscription, lead-generation program, or compensated referral relationship may also affect Form ADV brochure or Form CRS conflict disclosures, depending on the facts.
Advisor takeaway: Add marketing practices to the firm’s ADV amendment checklist and annual review process.
13. Enforcement Actions Show That Technical Failures Carry Real Consequences
The SEC has repeatedly used sweeps and individual cases to enforce the Marketing Rule.
Examples include:
These actions show that enforcement is not limited to deliberate fraud. Firms have been sanctioned for inadequate procedures, missing disclosures, unsupported statements, poor recordkeeping, and failure to perform required due diligence.
Practical Advisor Takeaways
Advisers can translate the session into a practical compliance program by taking the following steps:
For state-registered advisers, an additional step is essential: confirm whether the adviser’s home state has adopted the SEC rule or maintains different advertising and solicitation requirements. State standards and examination practices vary, and conduct permitted under the federal rule may not be permitted in every jurisdiction.
External Reference Sources
SEC — Investment Adviser Marketing: Small Entity Compliance Guide
https://www.sec.gov/resources-small-businesses/small-business-compliance-guides/investment-adviser-marketing
SEC — Investment Adviser Marketing Final Rule
https://www.sec.gov/files/rules/final/2020/ia-5653.pdf
Electronic Code of Federal Regulations — Rule 206(4)-1, Investment Adviser Marketing
https://www.ecfr.gov/current/title-17/chapter-II/part-275/section-275.206%284%29-1
SEC — Marketing Compliance Frequently Asked Questions, updated January 15, 2026
https://www.sec.gov/rules-regulations/staff-guidance/division-investment-management-frequently-asked-questions/marketing-compliance-frequently-asked-questions
SEC — Additional Observations Regarding Advisers’ Compliance with the Advisers Act Marketing Rule, June 9, 2026
https://www.sec.gov/compliance/risk-alerts/additional-observations-regarding-advisers-compliance-advisers-act-marketing-rule
SEC — Additional Marketing Rule Risk Alert PDF
https://www.sec.gov/files/exams-riskalert-mrkt-rule-2512-508.pdf
SEC — Initial Observations Regarding Advisers Act Marketing Rule Compliance
https://www.sec.gov/compliance/risk-alerts/risk-alert-041724
SEC — Examinations Focused on the New Investment Adviser Marketing Rule
https://www.sec.gov/examinations-focused-new-investment-adviser-marketing-rule
Electronic Code of Federal Regulations — Rule 204-2, Books and Records
https://www.ecfr.gov/current/title-17/chapter-II/part-275/section-275.204-2
Electronic Code of Federal Regulations — Rule 206(4)-7, Compliance Procedures and Practices
https://www.ecfr.gov/current/title-17/chapter-II/part-275/section-275.206%284%29-7
SEC — Nine Advisers Charged in 2024 Marketing Rule Sweep
https://www.sec.gov/newsroom/press-releases/2024-121
SEC — Five Advisers Charged for Marketing Rule Violations, April 2024
https://www.sec.gov/newsroom/press-releases/2024-46
SEC — Nine Advisers Charged for Hypothetical Performance Violations, 2023
https://www.sec.gov/newsroom/press-releases/2023-173-sec-sweep-marketing-rule-violations-results-charges-against-nine-investment-advisers
SEC — Wahed Invest Marketing Rule Proceeding
https://www.sec.gov/enforcement-litigation/administrative-proceedings/ia-6763-s
SEC — Pacific Financial Marketing Rule Proceeding
https://www.sec.gov/enforcement-litigation/administrative-proceedings/ia-6646-s
SEC — Atlas Financial Advisors Proceeding
https://www.sec.gov/enforcement-litigation/administrative-proceedings/ia-6803-s
SEC — Meridian Financial Proceeding
https://www.sec.gov/enforcement-litigation/administrative-proceedings/ia-6916-s
Overall Advisor Takeaway
The modern Marketing Rule is not a prohibition on creative marketing. It is a framework for ensuring that marketing is truthful, supportable, balanced, transparent, and subject to meaningful supervision.
Advisers may use client reviews, referral relationships, awards, video, social media, performance, and other contemporary marketing methods. The firms best positioned for examination, however, will be those that can reconstruct the full lifecycle of every advertisement—from creation and substantiation through approval, publication, monitoring, revision, and retention.
