SEC Marketing Rule checklist for small RIAs

1. Whether the Marketing Rule applies

The rule defines an advertisement two ways. A yes to both questions in the first route, or to the question in the second, brings the rest of this list in.

• First route: answer both.
• Does it go to more than one person (or include hypothetical performance, even to one person)? — Rule 206(4)-1(e)(1)(i)
• Does it offer our advisory services with regard to securities to prospective clients, or new services to current clients? — Rule 206(4)-1(e)(1)(i)
• Second route.
• Is it a testimonial or endorsement for which we provide compensation, directly or indirectly? — Rule 206(4)-1(e)(1)(ii)
• Then check the edges.
• Have we checked whether an exclusion applies? — Rule 206(4)-1(e)(1)(i)(A)-(C)
• The exclusions: extemporaneous, live, oral communications; information in a required notice or filing; and hypothetical performance given in response to an unsolicited request or one-on-one to a private fund investor.
• Have we looked past email and paper to other channels? — IA-5653, p. 17
• The release lists email, text and instant messages, electronic presentations, videos, podcasts, blogs and all manner of social media.
• Have we treated content that offers or promotes our services on our own website or social pages as likely to be an advertisement? — IA-5653, p. 23, n. 50
• For third-party content we link to or repost, have we asked whether we adopted it (explicitly or implicitly endorsed or approved it) or entangled ourselves in preparing it? — IA-5653, pp. 21-22
• If so, it can be attributed to us.
• Do we answer for each advertisement, whoever created or distributed it? — IA-5653, p. 19 ("regardless of who creates or disseminates them")

2. The seven general prohibitions

Check each against every statement in the piece.

• Is every statement of material fact true, with nothing left out that would make a statement misleading? — Rule 206(4)-1(a)(1)
• Do we have a reasonable basis for believing we can substantiate every material statement of fact on demand by the Commission? — Rule 206(4)-1(a)(2)
• Is it free of anything that would reasonably be likely to cause an untrue or misleading implication or inference about a material fact relating to our firm? — Rule 206(4)-1(a)(3)
• Where it describes benefits of our services, does it give fair and balanced treatment of the material risks and limitations? — Rule 206(4)-1(a)(4)
• Where it refers to specific investment advice we gave, is that presented fair and balanced? — Rule 206(4)-1(a)(5)
• Are performance results included or excluded, and time periods presented, in a way that is fair and balanced? — Rule 206(4)-1(a)(6)
• Is it free of anything else that is materially misleading? — Rule 206(4)-1(a)(7)
• What the staff saw, as questions to put to the same piece.
• Is every piece free of any claim that we are "free of all conflicts" while conflicts exist? The staff saw advertisements say that of firms with actual conflicts. — Alert, Apr. 17, 2024, p. 5
• Is every award we mention one we received? The staff saw advertisements publicizing awards that were not received. — Alert, Apr. 17, 2024, p. 5
• Can a reader read every disclosure on the page or screen? The staff saw disclosures in an unreadable font on websites and in videos. — Alert, Apr. 17, 2024, p. 8

3. Testimonials and endorsements

A testimonial is a statement by a current client, and an endorsement a statement by anyone else, about their experience with your firm, or soliciting or referring clients to it; an endorsement can also express approval, support or recommendation. An advertisement may not include one unless the conditions below are met or an exemption applies.

• Do we know whether each is a testimonial (current client) or an endorsement (anyone else)? — Rule 206(4)-1(e)(17), (e)(5)
• Disclosures.
• Does it say clearly and prominently whether the person is a current client? — Rule 206(4)-1(b)(1)(i)(A)
• Does it say clearly and prominently whether cash or non-cash compensation was provided? — Rule 206(4)-1(b)(1)(i)(B)
• Does it say clearly and prominently, in a brief statement, any material conflicts of interest the person has from their relationship with us? — Rule 206(4)-1(b)(1)(i)(C)
• Do we disclose the material terms of any compensation arrangement? — Rule 206(4)-1(b)(1)(ii)
• Do we describe any material conflicts of interest from the relationship or the compensation arrangement? — Rule 206(4)-1(b)(1)(iii)
• Are the disclosures made at the time the testimonial or endorsement is disseminated, by us or by the person giving it if we reasonably believe they do? — Rule 206(4)-1(b)(1)
• Are the clear-and-prominent disclosures within the testimonial or endorsement rather than behind a hyperlink? The staff saw hyperlinked disclosures. — Alert, Dec. 16, 2025, p. 3 and n. 13
• Are those disclosures no smaller or lighter than the statement they relate to? The staff saw smaller or lighter disclosures. — Alert, Dec. 16, 2025, p. 3
• Oversight and eligibility.
• Do we have a reasonable basis for believing the testimonial or endorsement complies with the rule? — Rule 206(4)-1(b)(2)(i)
• For anyone we compensate, is there a written agreement describing the scope of the activities and the terms of compensation? — Rule 206(4)-1(b)(2)(ii)
• Have we checked that no one we compensate is an ineligible person (subject to a disqualifying Commission action or event) whom we know, or with reasonable care should know, is ineligible? — Rule 206(4)-1(b)(3), (e)(9)
• Do we check promoters' disciplinary histories, including with state securities regulators? The staff saw promoters paid despite such histories. — Alert, Dec. 16, 2025, p. 5
• If a promoter is exempt (no or de minimis compensation; or one of our partners, officers, directors or employees whose affiliation is readily apparent or disclosed), do we know which exemption applies? — Rule 206(4)-1(b)(4)(i)-(ii)
• Do our written policies address testimonials and endorsements if we use them? The staff saw advisers that had not updated them. — Alert, Dec. 16, 2025, p. 2
• Reviews and comments.
• When we copy reviews from a third-party site onto ours, does the page say clearly and prominently that they come from current or former clients? — Alert, Dec. 16, 2025, p. 3
• If we give clients anything of value to write reviews, do we treat that as compensation for disclosure purposes? The staff saw gift cards given for reviews on third-party sites. — Rule 206(4)-1(b)(1)(i)(B); Alert, Dec. 16, 2025, p. 3
• Do we keep testimonials about a third party's product from being presented as if they were about our advisory services? The staff saw that on advisers' websites. — Alert, Apr. 17, 2024, p. 6
• If the public can comment on our site or page, do we leave the comments and their presentation alone and stay out of preparing them? — IA-5653, pp. 23-24
• The release says that is what keeps public comments from being attributed to the adviser.
• The alert's most common finding: the disclosures were not given when the testimonial or endorsement was disseminated. They were often on advisers' websites, including d/b/a sites. — Alert, Dec. 16, 2025, pp. 2-3

4. Third-party ratings

A third-party rating is a rating or ranking of your firm by a person who is not a related person and who provides ratings in the ordinary course of its business.

• Do we have a reasonable basis for believing any questionnaire or survey behind the rating makes it equally easy to give favorable and unfavorable responses, and was not designed to produce a predetermined result? — Rule 206(4)-1(c)(1)
• For the next three, the advertisement must disclose it clearly and prominently, or we must reasonably believe the rating itself does.
• Is the date the rating was given, and the period it was based on, disclosed? — Rule 206(4)-1(c)(2)(i)
• Is the identity of the third party that created and tabulated the rating disclosed? — Rule 206(4)-1(c)(2)(ii)
• If we paid, directly or indirectly, in connection with obtaining or using the rating, is that disclosed? — Rule 206(4)-1(c)(2)(iii)
• Are those disclosures next to the rating? The staff saw them as hyperlinks, in smaller text, or at the bottom of the page away from the ratings. — Alert, Dec. 16, 2025, p. 7
• Have we written down how we formed our basis? The staff saw advisers review publicly disclosed information about a survey's method, obtain the questionnaires, or seek representations from the rating firm. — Rule 204-2(a)(15)(ii); Alert, Dec. 16, 2025, p. 6
• If we obtained the questionnaire or survey, do we keep a copy? The staff saw advisers that completed questionnaires and did not. — Rule 204-2(a)(11)(ii); Alert, Apr. 17, 2024, p. 3
• Do our Form ADV answers about third-party ratings match what our website and social posts show? The staff saw advisers whose answers did not. — Alert, Apr. 17, 2024, p. 3

5. Performance

Use this section for any performance figure, model portfolio, backtest or projection in the piece. The records behind these figures are in section 6.

• Where we show gross performance, do we also show net, with at least equal prominence and in a format designed to facilitate comparison? — Rule 206(4)-1(d)(1)(i)
• Is net calculated over the same time period, and with the same type of return and methodology, as the gross? — Rule 206(4)-1(d)(1)(ii)
• For a portfolio or composite (other than a private fund), do we show one-, five- and ten-year results with equal prominence, ending no earlier than the most recent calendar year-end? — Rule 206(4)-1(d)(2)
• Where a portfolio did not exist for one of those periods, have we substituted its life? — Rule 206(4)-1(d)(2)
• Is it free of any statement, express or implied, that the SEC approved or reviewed our calculation or presentation of performance? — Rule 206(4)-1(d)(3)
• Does related performance include all related portfolios, or do the exclusions leave the results not materially higher and the required time periods unchanged? — Rule 206(4)-1(d)(4)
• Does extracted performance come with the total portfolio's results, or an offer to provide them promptly? — Rule 206(4)-1(d)(5)
• For hypothetical performance (model portfolios, backtests, projections), have we adopted and implemented policies reasonably designed to make it relevant to the likely financial situation and investment objectives of the intended audience? — Rule 206(4)-1(d)(6)(i)
• Do we give enough information on the criteria and assumptions for the audience to understand them? — Rule 206(4)-1(d)(6)(ii)
• Do we give enough information on the risks and limitations for the audience to understand them? — Rule 206(4)-1(d)(6)(iii)
• Predecessor performance: four conditions.
• Do the people primarily responsible for the results manage accounts at our firm? — Rule 206(4)-1(d)(7)(i)
• Are the accounts managed at the predecessor sufficiently similar to ours that the results give relevant information? — Rule 206(4)-1(d)(7)(ii)
• Do we advertise all substantially similar accounts, unless excluding one does not materially raise the results or alter the required time periods? — Rule 206(4)-1(d)(7)(iii)
• Does the advertisement clearly and prominently say the results came from accounts managed at another entity, with all relevant disclosures? — Rule 206(4)-1(d)(7)(iv)
• Example from the SEC's enforcement record. On Sept. 11, 2023 the SEC announced settled actions against nine advisers and said they agreed to pay $850,000 in combined penalties. The orders find the firms advertised hypothetical performance on their public websites without policies and procedures reasonably designed to ensure it was relevant to the likely financial situation and objectives of the intended audience. The firms settled without admitting or denying the findings. — SEC press release 2023-173; orders IA-6404 to IA-6412

6. Records

What to keep

• Do we keep a copy of each advertisement we disseminate, directly or indirectly, including each website page or social post that is one? — Rule 204-2(a)(11)(i)(A)
• For an oral advertisement, keep the written or recorded materials used; for a compensated oral testimonial or endorsement, a record of the disclosures given is enough. The staff saw advisers that did not maintain copies of information posted to social media. — Rule 204-2(a)(11)(i)(A); Alert, Apr. 17, 2024, p. 3
• Do we keep a copy of any notice, circular, newspaper article, investment letter, bulletin or other communication we send to ten or more persons (other than persons associated with our firm)? — Rule 204-2(a)(11)(i)(B)
• If a communication recommends buying or selling a specific security without stating the reasons, do we keep a memorandum of the reasons? — Rule 204-2(a)(11)(i)(C)
• If we obtained a questionnaire or survey used for a third-party rating in an advertisement, do we keep a copy? — Rule 204-2(a)(11)(ii)
• If the compensation terms and conflict descriptions ((b)(1)(ii) and (iii)) are not in the advertisement itself, do we keep a record of the disclosures given to clients and investors? — Rule 204-2(a)(15)(i)
• Do we keep documentation supporting our reasonable basis for believing each testimonial or endorsement complies, and each third-party rating meets the questionnaire condition? — Rule 204-2(a)(15)(ii)
• Do we keep a record of the names of our partners, officers, directors and employees (and persons who control, are controlled by or are under common control with us) whose testimonials or endorsements rely on the affiliated-person exemption? — Rule 204-2(a)(15)(iii)
• Do we keep the written agreement with each paid promoter? — Rule 204-2(a)(10); IA-5653, n. 827
• The release places it under (a)(10).
• Do we keep the accounts, books, internal working papers and other records necessary to form the basis for or demonstrate the calculation of every performance figure or rate of return we present? — Rule 204-2(a)(16)
• Have we recorded who the "intended audience" is for hypothetical performance? — Rule 204-2(a)(19)
• If a web vendor hosts or archives our site, have we confirmed it keeps copies of our advertisements? — SEC order IA-6916 (below)
• If we keep records electronically, are they arranged and indexed so any one can be found and produced promptly? — Rule 204-2(g)(2)(i)-(ii)
• Is a duplicate copy of each electronic record stored separately for the required time? — Rule 204-2(g)(2)(iii)
• The release says the rule prescribes no particular method and that email archives, including in cloud storage or with a third-party vendor, are permissible if records can be produced promptly. — IA-5653, pp. 245-246
• Example from the SEC's enforcement record. In IA-6916 (Sept. 4, 2025) the SEC found that Meridian Financial, LLC "failed to keep true, accurate, and current copies of advertisements published on its public website," and that neither the firm nor its third-party web provider kept copies of all of them. The order also found the firm claimed it "refuse[d] all conflicts of interest" without context. The firm agreed to a $75,000 penalty, without admitting or denying the findings. — SEC order IA-6916

How long to keep it

• "(i) Books and records required to be made under the provisions of paragraphs (a)(11) and (a)(16) of this rule shall be maintained and preserved in an easily accessible place for a period of not less than five years, the first two years in an appropriate office of the investment adviser, from the end of the fiscal year during which the investment adviser last published or otherwise disseminated, directly or indirectly, the notice, circular, advertisement, newspaper article, investment letter, bulletin or other communication."

• Worked example, dates only. An advertisement last published in March 2026, at a firm whose fiscal year ends December 31, is kept at least through December 31, 2031. The clock runs from the end of the fiscal year in which it was last disseminated, not from the date it was created. — Rule 204-2(e)(3)(i)
• Records under (a)(15) and (a)(19). The rule text does not name these records in (e)(3)(i). Paragraph (e)(1) is the general period: not less than five years from the end of the fiscal year during which the last entry was made on the record, the first two years in an appropriate office. — Rule 204-2(e)(1)

7. Policies and annual review

• Do we have written policies and procedures, adopted and implemented, reasonably designed to prevent violations of the Advisers Act and its rules, including the Marketing Rule? — Rule 206(4)-7(a); Alert, Sept. 19, 2022, p. 1
• Are they in writing and tailored to our actual advertising? The staff saw policies that were informal or not tailored to specific advertisements. — Alert, Apr. 17, 2024, p. 2
• Do they cover every channel we use, including our website and social media? The staff saw policies that did not. — Alert, Apr. 17, 2024, p. 2
• Do they include objective and testable means reasonably designed to prevent violations in the advertisements we disseminate? — IA-5653, p. 239
• Have we written down how we review advertisements? — IA-5653, pp. 237, 239; Alert, Sept. 19, 2022, p. 2
• The rule does not require pre-approval. The release gives these examples of methods: internal pre-review and approval, reviewing a sample based on risk, pre-approving templates, spot-checking and periodic reviews.
• Have we considered training for anyone who creates, reviews or disseminates advertisements? — IA-5653, p. 240
• If staff social media accounts are not used to market our services, have we adopted and implemented policies reasonably designed to prevent that use? — IA-5653, p. 24
• The release says that, with such policies, it generally would not treat those posts as the firm marketing its services.
• If we use hypothetical performance, is the relevance policy from section 5 written down? — Rule 206(4)-1(d)(6)(i)
• Have we designated a chief compliance officer to administer the policies? — Rule 206(4)-7(c)
• Do we review the policies and procedures at least annually for adequacy and for the effectiveness of their implementation? — Rule 206(4)-7(b)
• Do we keep records documenting each annual review? — Rule 204-2(a)(17)(ii)
• The staff saw advisers that claimed to review but could not provide evidence that one occurred. — Alert, Nov. 19, 2020, p. 3
• Do we keep a copy of the policies in effect, or in effect at any time in the past five years? — Rule 204-2(a)(17)(i)

What the four SEC staff alerts cover

Risk alerts on the Marketing Rule include these four. Each is a staff document.

• Sept. 19, 2022, “Examinations Focused on the New Investment Adviser Marketing Rule”: the staff will review whether advisers have adopted and implemented written policies and procedures covering the Marketing Rule, and review books and records for compliance.
• June 8, 2023, “Examinations Focused on Additional Areas of the Adviser Marketing Rule”: the Division encourages advisers to review their websites and other marketing materials, including substantiation of material statements of fact and performance advertising.
• Apr. 17, 2024, “Initial Observations Regarding Advisers Act Marketing Rule Compliance”: observed gaps in policies, books and records, and advertisements.
• Dec. 16, 2025, “Additional Observations Regarding Advisers' Compliance with the Advisers Act Marketing Rule”: testimonials, endorsements and third-party ratings only.

Sources

1. eCFR, 17 CFR 275.206(4)-1, Investment adviser marketing. https://www.ecfr.gov/current/title-17/section-275.206(4)-1
2. eCFR, 17 CFR 275.204-2, Books and records to be maintained by investment advisers. https://www.ecfr.gov/current/title-17/section-275.204-2
3. Cornell LII, 17 CFR 275.204-2, paragraphs (g) and (a)(17). https://www.law.cornell.edu/cfr/text/17/275.204-2
4. Cornell LII, 17 CFR 275.206(4)-7, Compliance procedures and practices. https://www.law.cornell.edu/cfr/text/17/275.206(4)-7
5. SEC, Investment Adviser Marketing, Release No. IA-5653 (Dec. 22, 2020). https://www.sec.gov/files/rules/final/2020/ia-5653.pdf
6. SEC Division of Examinations risk alert, Examinations Focused on the New Investment Adviser Marketing Rule (Sept. 19, 2022). https://www.sec.gov/files/exams-risk-alert-marketing-rule.pdf
7. SEC Division of Examinations risk alert, Examinations Focused on Additional Areas of the Adviser Marketing Rule (June 8, 2023). https://www.sec.gov/files/risk-alert-marketing-rule-announcement-phase-3-060823.pdf
8. SEC Division of Examinations risk alert, Initial Observations Regarding Advisers Act Marketing Rule Compliance (Apr. 17, 2024). https://www.sec.gov/files/exams-risk-alert-marketing-observation-2024.pdf
9. SEC Division of Examinations risk alert, Additional Observations Regarding Advisers' Compliance with the Advisers Act Marketing Rule (Dec. 16, 2025). https://www.sec.gov/files/exams-riskalert-mrkt-rule-2512-508.pdf
10. SEC OCIE risk alert, Observations: Investment Adviser Compliance Programs (Nov. 19, 2020). https://www.sec.gov/files/risk-alert-ia-compliance-programs.pdf
11. SEC, press release 2023-173, Sweep Into Marketing Rule Violations Results in Charges Against Nine Investment Advisers (Sept. 11, 2023). https://www.sec.gov/newsroom/press-releases/2023-173-sec-sweep-marketing-rule-violations-results-charges-against-nine-investment-advisers
12. SEC orders IA-6404 to IA-6412 (Sept. 11, 2023), nine In the Matter of orders; for example Elm Partners Management LLC, IA-6406. https://www.sec.gov/files/litigation/admin/2023/ia-6406.pdf
13. SEC, In the Matter of Meridian Financial, LLC, IA-6916 (Sept. 4, 2025). https://www.sec.gov/files/litigation/admin/2025/ia-6916.pdf

Sources opened October 27, 2026.