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The Investment Advisers Act Marketing Rule in 2026

Speaker: Michelle Atlas-Quinn, Securities Attorney
Original Air Date: September 15, 2026
Run Time: Approximately 104 minutes
Topic Area: Investment Adviser Compliance, Ethics & Marketing

Key Takeaways

• The Investment Advisers Act Marketing Rule reaches far beyond traditional advertising. Websites, emails, social media, podcasts, testimonials, referrals, performance presentations, and third-party ratings may all fall within its scope.
• Advertisements must be truthful, substantiated, and balanced. Advisers should avoid misleading statements, omitted material facts, unsubstantiated claims, unbalanced discussions of benefits and risks, and cherry-picked information.
• Reposting, linking to, quoting, editing, or otherwise approving third-party content can result in adoption or entanglement, potentially making the adviser responsible for that content.
• Testimonials and endorsements are permitted, but firms need to understand the required disclosures, compensation arrangements, conflicts of interest, written agreements, and promoter eligibility requirements.
• Performance advertising can include actual, hypothetical, extracted, predecessor, and related performance, but each presents specific compliance and documentation considerations.
• Third-party rankings and awards require careful due diligence and disclosures regarding the creator, date, period covered, methodology, and compensation, when applicable.
• Advisers should be able to substantiate material claims on demand. Saving only a hyperlink may not be sufficient; screenshots, PDFs, calculations, surveys, and other supporting evidence should be retained.
• Using an outside marketing company does not transfer the adviser's compliance responsibility to the vendor. The firm should have its own review and approval process.
• Written policies are only the beginning. Firms should have documented workflows, testing, employee oversight, vendor due diligence, and reliable archiving procedures.
• Michelle emphasized that marketing continues to receive significant attention during SEC examinations, making ongoing examination readiness an important part of a firm's compliance program.

What Is an Advertisement?

One of the first questions Michelle addressed was deceptively simple: What actually counts as advertising?

The answer is broader than many advisers may expect.

Generally, a direct or indirect communication from an investment adviser to more than one person can be an advertisement. Certain communications to just one person can also fall within the rule, particularly when hypothetical performance is presented.

Compensated testimonials and endorsements can also trigger the Marketing Rule, and compensation isn't limited to writing someone a check. It can potentially include reduced advisory fees, gifts, entertainment, reciprocal referrals, or other cash or non-cash benefits.

That means an adviser who says, “I don't advertise; I only get referrals,” shouldn't automatically assume the Marketing Rule doesn't apply.

If the firm has a website, communicates about new services, uses social media, shares client reviews, participates in referral arrangements, or publishes other promotional communications, there may be marketing-related compliance responsibilities.

The General Prohibitions

Regardless of the type of advertisement, several basic principles run throughout the Marketing Rule.

Marketing cannot include:

• Materially false or misleading statements
• Material statements that cannot be substantiated
• Material omissions that make an otherwise truthful statement misleading
• Misleading implications or inferences
• Discussions of potential benefits without fair and balanced treatment of material risks
• Cherry-picked recommendations or performance
• Other presentations that are materially misleading

Michelle stressed the increasing importance of substantiation.

It isn't enough for a statement to actually be true. If an adviser makes a material factual claim in marketing, the firm should be prepared to demonstrate the reasonable basis for making that claim.

Adoption and Entanglement

One of the most important areas discussed during the webinar was adoption and entanglement.

Adoption can occur when an adviser takes third-party content and effectively makes it the firm's own—for example, by reposting it, linking to it, quoting it, or explicitly or implicitly endorsing it.

Entanglement can occur when the adviser becomes involved in preparing the third party's communication, such as providing language, editing content, or establishing criteria for what the third party will publish.

Consider an adviser who appears on a podcast.

The podcast may initially exist on someone else's platform. But if the adviser later posts the interview on the firm's website or directs clients and prospects to it, the firm may have adopted that content.

That creates an important practical issue: A casual statement made during a live interview can become part of the firm's marketing when the interview is subsequently promoted or republished.

Michelle recommended reviewing such content before using it and retaining the appropriate records.

Social Media Is Part of the Compliance Picture

Social media deserves particular attention because advisers and employees can easily repost, like, link to, or comment on third-party material.

Those actions can potentially create adoption or entanglement issues.

Michelle noted that firms should not simply put a few sentences about social media in the compliance manual and assume the issue has been addressed.

Firms should educate employees about their policies and test whether employees are actually following them.

That might include periodically reviewing employee LinkedIn profiles and other public-facing social-media activity to identify posts, testimonials, endorsements, or other communications that may conflict with firm policies.

Testimonials and Endorsements

The Marketing Rule allows investment advisers to use testimonials and endorsements, but there are important distinctions and requirements.

A testimonial generally involves a statement from a current client about the adviser or the client's experience with the adviser.

An endorsement generally involves a statement from someone other than a current client, such as a CPA, attorney, blogger, referral source, or other promoter.

For example, an unsolicited Google review sitting on Google's platform isn't necessarily something the adviser has adopted. But if the adviser takes that review and places it on the firm's website or promotes it through social media, it can become a testimonial used in the firm's marketing.

Required disclosures can address:

• Whether the person is a current client
• Whether compensation was provided
• Material conflicts of interest
• The relationship between the promoter and adviser

When compensation exceeds the applicable threshold, a written agreement may also be required. Firms should also determine whether compensated promoters are eligible and maintain appropriate due diligence records.

Referrals Can Create Marketing Issues

Referral arrangements deserve particular attention because advisers may not think of them as advertising.

A CPA, estate attorney, networking contact, or other professional may regularly send clients to an adviser. If nothing of value is provided in return, the analysis may be relatively straightforward.

But what if the adviser routinely sends business back?

Reciprocal referrals can potentially constitute non-cash compensation, requiring the firm to evaluate whether the arrangement falls within the testimonial and endorsement requirements.

Michelle's practical advice was to analyze the relationship and document the firm's conclusion rather than simply assuming a referral arrangement falls outside the rule.

Performance Advertising

Performance advertising can be particularly complex.

Michelle explained that firms using performance generally need to appropriately present gross and net performance and use consistent prescribed periods so prospects can properly evaluate the information.

The Marketing Rule can permit several types of performance presentations, including:

• Actual performance
• Extracted performance
• Hypothetical performance
• Predecessor performance
• Related performance

Each comes with its own requirements.

For example, extracted performance may show the performance of a particular component of a portfolio, but the presentation should clearly explain what is being shown.

Hypothetical performance requires appropriate policies and procedures as well as information regarding assumptions, methodology, risks, and limitations.

Related performance must also be handled carefully to prevent cherry-picking. Advisers shouldn't simply select the best-performing account from a group of accounts following substantially similar strategies.

Document Unsolicited Performance Requests

An important distinction can arise when an investor genuinely makes an unsolicited request for certain performance information.

Michelle gave the example of an existing client asking to compare the firm's moderate portfolio with its moderately aggressive portfolio.

The practical lesson was straightforward: Keep the request.

If the firm is relying on the fact that information was supplied in response to an unsolicited request, an email or other documentation showing that the client initiated the request can become an important compliance record.

Third-Party Ratings and Awards

Being named a “Top Advisor” or “Best RIA” can be valuable marketing—but advisers need to understand how that ranking was created before promoting it.

The firm should have a reasonable basis for believing the rating methodology allows both favorable and unfavorable responses and isn't designed to produce a predetermined result.

Advisers should also consider disclosures involving:

• Who created the rating
• When the rating was issued
• The period the rating covers
• How the rating was determined
• Whether the adviser directly or indirectly compensated the organization

Even something as simple as an award appearing in an email signature can raise compliance concerns if the necessary context isn't provided.

An old award can also become misleading if it continues to appear without clearly identifying when it was received.

Don't Just Save the Link

One of the most practical recommendations from the webinar was also one of the simplest:

Don't rely solely on hyperlinks for substantiation.

Suppose an adviser cites a third-party article to support a material statement in a newsletter. Two years later, the SEC asks the firm to substantiate the statement—but the webpage has disappeared or changed.

If the firm saved only the URL, it may no longer have the evidence it relied upon when the advertisement was created.

Michelle recommended retaining a PDF, screenshot, or other permanent copy of supporting information.

The same principle applies to podcasts and videos. If the firm is relying on or republishing the material, retain the relevant audio, video, transcript, outline, or other records rather than assuming the third-party link will always exist.

Books and Records Matter

Marketing compliance and recordkeeping go hand in hand.

Depending on the firm's activities, records may include:

• Advertisements and marketing templates
• Historical website content
• Social-media posts
• Approval records
• Evidence supporting material factual claims
• Performance calculations and underlying data
• Hypothetical-performance methodologies and assumptions
• Third-party rating questionnaires and methodologies
• Testimonial and endorsement disclosures
• Promoter agreements and due diligence
• Podcast, video, and oral-presentation materials
• Evidence of compensation arrangements

Michelle emphasized that the more organized these records are before an examination, the easier it is to respond when regulators ask for them.

Your Marketing Company Doesn't Own Your Compliance Responsibility

Hiring an outside marketing company doesn't mean the adviser can simply assume everything the vendor creates complies with the Marketing Rule.

Someone at the advisory firm should still be responsible for reviewing marketing for compliance.

The firm should also retain evidence showing who reviewed the material, what was reviewed, and when it was approved.

The same concept applies to lead-generation services, referral networks, influencers, website providers, and other vendors involved in the firm's marketing program.

Vendor due diligence should therefore be part of the compliance process.

Move From Policies to Documented Workflows

Having a good compliance manual isn't enough if the firm's actual practices don't match it.

Michelle described an effective Marketing Rule compliance program as an active, documented process.

Depending on the firm's size and activities, that may include:

• Pre-approval of advertisements
• Written documentation of approvals
• Substantiation testing
• Employee social-media reviews
• Vendor due diligence
• Testing promoter disclosures
• Periodic communication reviews
• Website and social-media archiving
• Historical versions of advertisements
• Centralized storage of supporting records

The process doesn't have to look identical at every firm.

A large advisory organization might use sophisticated compliance and archiving software. A smaller firm might use spreadsheets, folders, PDFs, and manual approval logs.

The important issue is whether the firm's procedures are reasonable for its business, documented, followed, and tested.

Make Sure Your ADV Matches What You're Actually Doing

Michelle also encouraged advisers—particularly owners of smaller RIAs—to review the marketing-related information reported on their Form ADV.

Marketing practices can evolve quickly. A firm that wasn't using performance advertising when its ADV was prepared may begin doing so later.

The firm's regulatory disclosures, policies and procedures, and actual business practices should tell a consistent story.

That matters because regulators can use information in the ADV as part of their assessment of the firm and in determining what questions to pursue during an examination.

Practical Application for Investment Advisers

For advisers, the Marketing Rule shouldn't necessarily be viewed as a reason to stop marketing.

Instead, it creates a framework for asking better questions before content is published.

Before using a marketing communication, consider:

• Is this communication subject to the Marketing Rule?
• Can we substantiate every material factual claim?
• Are benefits and material risks presented fairly?
• Are we unintentionally cherry-picking information?
• Have we adopted third-party content?
• Are testimonials or endorsements being used?
• Is anyone receiving direct or indirect compensation?
• Are the necessary disclosures clear and prominent?
• If we're showing performance, are we following the applicable requirements?
• If we're promoting an award, do we understand the methodology and compensation?
• Has compliance reviewed and documented approval?
• Have we retained everything necessary to recreate and substantiate the advertisement later?

The goal is to make compliance part of the marketing process rather than something the firm attempts to reconstruct after receiving an examination request.

As Michelle emphasized throughout the session, staying prepared is considerably easier than trying to get prepared once regulators are already on their way.

Compliance Note

This summary is provided for educational purposes only and does not constitute legal, regulatory, or compliance advice. Application of the Investment Advisers Act Marketing Rule depends on the facts and circumstances surrounding a firm's communications, compensation arrangements, marketing practices, clients, and regulatory status. Investment advisers should consult their compliance professionals or qualified securities counsel regarding the application of the Marketing Rule to their specific activities.