SEC Marketing Rule checklist for small RIAs (2026)

The Marketing Rule, 17 CFR 275.206(4)-1, has applied to SEC-registered advisers since the compliance date of 4 November 2022. It has four operative parts: general prohibitions (a), testimonials and endorsements (b), third-party ratings (c) and performance (d), plus definitions in (e). The record-keeping side sits in Rule 204-2, and Form ADV Part 1A Item 5.L asks you to report what your advertisements contain. The checklist below follows that order. It is general information, not legal advice, and the rule text is the authority.

Is it an advertisement at all?

Under (e)(1) an advertisement has two prongs. The first is any direct or indirect communication to more than one person (or to one or more persons if it includes hypothetical performance) that offers advisory services with regard to securities to prospective clients or private fund investors, or offers new services to current ones. The second is any testimonial or endorsement you pay for, directly or indirectly. Excluded from the first prong: extemporaneous, live, oral communications; information in a required notice or filing; and hypothetical performance given in response to an unsolicited request or to a private fund investor one on one. Websites, social posts, newsletters, decks and award pages are almost always in scope.

The checklist

Rule	Check
(a)(1)	No untrue statement of material fact, and no omission that makes a statement misleading.
(a)(2)	Every material statement of fact can be substantiated on demand. Keep the proof with the ad.
(a)(3)	No misleading implication, such as suggesting SEC approval or that registration implies skill.
(a)(4)	Any benefit discussed has fair and balanced treatment of material risks or limitations.
(a)(5)	References to specific investment advice are fair and balanced (not only the winners).
(a)(6)	Performance results and time periods are not included or excluded in an unbalanced way.
(a)(7)	Nothing is otherwise materially misleading.
(b)(1)	Each testimonial or endorsement states, clearly and prominently, client or non-client status, whether compensation was paid, and a brief statement of material conflicts; material terms of compensation are disclosed.
(b)(2)	You have a reasonable basis to believe it complies, and a written agreement with any promoter paid more than $1,000 in the preceding 12 months.
(b)(3)	No compensated promoter is an ineligible person (disqualifying events in the past ten years).
(c)(1)	Reasonable basis to believe any rating survey makes favourable and unfavourable answers equally easy and is not designed to produce a predetermined result.
(c)(2)	Each rating shows the date given and period based on, who created it, and any compensation you paid in connection with obtaining or using it.
(d)(1)	Gross performance is shown only with net, at least equally prominent, same period and method.
(d)(2)	Portfolio results (other than private funds) include 1, 5 and 10-year periods, equal prominence, ending no earlier than the latest calendar year-end; life of portfolio replaces a period it did not exist for.
(d)(3)	No statement that the SEC approved or reviewed the performance.
(d)(4)	Related performance includes all related portfolios, unless exclusions neither materially raise results nor alter the (d)(2) periods.
(d)(5)	Extracted performance comes with, or an offer of, the total portfolio's results.
(d)(6)	Hypothetical performance only with policies tying it to the audience, plus criteria, assumptions, risks and limitations.
(d)(7)	Predecessor performance only if the same people manage accounts here, accounts are similar, all similar accounts are included, and the source firm is disclosed.

Testimonials, endorsements and ratings have their own guides: what the December 2025 risk alert found and how to disclose an award.

What do the performance rules mean in practice?

Gross and net. The staff FAQ (6 Feb 2024) confirms net must use the same methodology and period as gross. A 15 January 2026 FAQ says showing net returns after actual fees, when the audience will pay higher fees, may breach the general prohibitions depending on the facts and disclosures.
1, 5 and 10 years. "Since inception" substitutes only for a period the portfolio did not exist. The FAQ allows interim figures for a reasonable period after year-end, generally not more than one month.
Hypothetical. The adopting release says advisers "generally would not be able to include hypothetical performance in advertisements directed to a mass audience or intended for general circulation" (86 FR 13083). Model, backtested and target returns are all hypothetical under (e)(8).
Extracted. A 19 March 2025 FAQ lets you show gross only for an extract if the total portfolio's gross and net are shown with at least equal prominence over a period covering the extract.
Predecessor. Keep the evidence for each (d)(7) condition; it is what an examiner asks for.

What records does Rule 204-2 require?

(a)(11)(i): a copy of each advertisement you disseminate (for oral ads, the written or recorded materials used). (a)(11)(ii): a copy of any rating questionnaire or survey, if you obtain one.
(a)(15): records of (b)(1)(ii) and (iii) disclosures if not in the ad itself; documentation of your reasonable basis for testimonials, endorsements and the (c)(1) rating survey; and a list of affiliated persons relying on the (b)(4)(ii) exemption.
(a)(16): everything needed to demonstrate any performance figure you advertise, including information provided or offered under (d)(6).
Retention: five years from the end of the fiscal year you last disseminated the ad, the first two in an appropriate office ((e)(3)(i)). See marketing books and records.

The April 2024 risk alert found firms that completed rating questionnaires without keeping a copy, did not keep social media posts, and could not support performance claims.

Does Form ADV Item 5.L match your ads?

Item 5.L asks whether your advertisements include performance results, specific investment advice, testimonials, endorsements or third-party ratings; whether you pay for testimonials, endorsements or ratings; and whether they include hypothetical or predecessor performance. The 2024 alert found advisers answering "no" to ratings, performance and hypothetical performance while their websites and materials showed them. Recheck 5.L whenever your marketing changes and at the annual amendment.

How should a small firm run this?

The 2024 alert criticised policies that were only general descriptions, did not cover websites and social media, or were not implemented. A workable routine for a one-to-five person firm: pre-review every new ad against the table, record the decision and the exact version approved, keep substantiation with it, and review the whole set quarterly. Plumb's marketing review log stores each decision with a hash of the content reviewed, and the free website check runs the website-visible items above. State-registered advisers should check their own state rules, as noted in the FAQ below.

Does the SEC Marketing Rule apply to state-registered advisers?

No. Rule 206(4)-1 applies to advisers registered or required to be registered with the SEC. State-registered advisers follow their state rules. NASAA members voted on 4 May 2026 to adopt model rule amendments that align state advertising rules with the SEC rule, but each state must adopt them before they apply there.

Is a one-to-one email to a prospect an advertisement?

Usually not. The first prong of the definition covers communications to more than one person, so a genuinely individual email is generally outside it, unless it includes hypothetical performance. The general anti-fraud provisions of section 206 still apply.

How long must I keep copies of advertisements?

Rule 204-2(e)(3)(i) requires five years from the end of the fiscal year in which you last disseminated the advertisement, the first two years in an appropriate office of the adviser.

When does my performance need to be updated after year-end?

Rule 206(4)-1(d)(2) requires periods ending no earlier than the most recent calendar year-end. The SEC staff FAQ says it would not object to interim figures for a reasonable period, which generally would not exceed one month after year-end.

Plumb is a record-keeping tool. It is not legal advice and it is not a substitute for a compliance professional. The firm and its Chief Compliance Officer make every decision recorded in Plumb. Automated checks can miss things and can flag things that are fine. Plumb is not affiliated with or endorsed by the SEC, FINRA, NASAA or any state regulator. This page is general information, not legal advice.