SEC Marketing Rule FAQs (2026): What the Latest Guidance Means for Compliance Teams
TL;DR; The SEC’s 2026 Marketing Rule FAQs raise the bar on judgment-based decisions, making documentation, disclosures, and durable recordkeeping critical to passing exams and avoiding enforcement risk.
In January 2026, the SEC’s Division of Investment Management issued two new FAQs addressing ongoing questions under the Investment Adviser Marketing Rule. They offer insight into how examiners and enforcement staff are likely to evaluate adviser marketing practices, particularly where judgment is involved.
Taken together, the FAQs reinforce that marketing is regulated through a principles-based lens, not a checklist. Advisers may have flexibility in how they present performance or use testimonials, but that flexibility only comes with:
- High expectations for documented reasoning
- Clear disclosures
- Supervisory controls that can withstand after-the-fact review
Why principles-based scrutiny now carries more risk
The SEC is signaling that flexibility under the Marketing Rule will be evaluated after the fact, through an examiner’s lens. This shifts risk from what firms say to what they can prove. Compliance teams are now accountable not just for approving marketing, but for preserving evidence of how decisions were made, how disclosures were delivered, and whether reasonable care can be reconstructed years later. Firms that treat marketing review or recordkeeping as static risk being second-guessed with limited defenses.
Model fees vs. actual fees under the SEC Marketing Rule
The first FAQ addresses whether advisers may present net performance based on actual fees when the fees anticipated for the intended audience are higher. The SEC staff confirms that advisers are not automatically prohibited from this practice. However, permissibility depends on the specific facts, circumstances, and disclosures.
For compliance teams, this elevates the importance of evaluating how performance is framed, who the intended audience is, and whether fee differences are clearly explained.
Compliance teams should:
- Assess audience-specific fee assumptions by confirming that performance calculations reflect the fees the intended audience is likely to pay, rather than relying on historical or legacy fee structures
- Enhance fee-related disclosures by considering side-by-side performance presentations using actual and model fees, along with narrative explanations describing the impact of higher anticipated fees
- Document marketing approval decisions by clearly capturing why a specific fee methodology was selected and how potential investor confusion was identified and mitigated
- Retain approval and disclosure records by preserving advertisements alongside approval notes, disclosure language, and supervisory rationale to demonstrate reasonable care during exams
Testimonials and endorsements under the SEC Marketing Rule
The second FAQ provides clarity around testimonials and endorsements involving individuals subject to certain self-regulatory organization final orders. The SEC staff confirms that these orders do not automatically disqualify a person from providing compensated testimonials if specific conditions and disclosure requirements are met.
This guidance allows firms to move away from blanket prohibitions, provided their compliance programs apply structured oversight and ongoing monitoring.
Compliance teams should:
- Refine testimonial and influencer due diligence to distinguish between disqualifying events that require exclusion and those that permit use with appropriate disclosures under the Marketing Rule
- Strengthen onboarding and ongoing monitoring by tracking self-regulatory organization orders, confirming compliance with order terms, and verifying payment of any fines or penalties
- Ensure disclosure consistency across channels by coordinating marketing and compliance workflows so required disclosures and links to underlying orders appear wherever testimonials are used
- Maintain long-term disclosure records by retaining auditable proof that disclosures were delivered and accessible for the full ten-year period required by the rule
SEC Marketing Rule recordkeeping: Why it matters more than ever
Across both FAQs, SEC expectations assume that firms can capture, retain, and reproduce marketing content as it was actually used, along with the disclosures and internal approvals that supported it. This includes marketing distributed across email, websites, social media, and third-party testimonial channels, as well as the compliance reviews and supervisory communications behind those decisions. Without centralized communications capture and durable recordkeeping, firms may be unable to demonstrate reasonable care during exams or enforcement inquiries.
How Smarsh supports SEC Marketing Rule compliance
Smarsh helps investment advisers operationalize the SEC’s principles-based Marketing Rule by ensuring marketing content, disclosures, and supervisory reviews are captured and retained as they were actually used. By centralizing communications across email, web, social media, and third-party platforms, Smarsh enables compliance teams to preserve context, document decision-making, and demonstrate reasonable care during exams. This allows firms to move faster with confidence — without sacrificing defensibility when regulatory scrutiny follows.
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