Key enforcement themes under the SEC Marketing Rule in 2026, with a focus on substantiation, disclosures, and recordkeeping.
As registered investment advisers continue to refine their marketing strategies, the SEC’s Marketing Rule (Rule 206(4)-1 under the Investment Advisers Act of 1940) remains a focal point of examinations and enforcement activity. In 2026, the regulatory posture has become more defined—not through new rulemaking, but through how the rule is being interpreted and applied in practice. Recent examination findings and enforcement actions suggest a continued emphasis on substantiation, disclosure accuracy, and internal controls surrounding marketing content. Advisers should not assume that implementation of the rule in prior years is sufficient; rather, marketing frameworks should be revisited in light of evolving regulatory expectations.
A recurring theme in examinations is the requirement that advisers maintain adequate support for all material statements of fact, particularly those relating to performance. This includes not only historical results, but also any assumptions underlying hypothetical or projected performance. Firms should be prepared to demonstrate how performance figures were calculated, what data sources were used, and whether appropriate records are maintained in accordance with Rule 204-2.
Hypothetical performance—while permissible under the rule—continues to present elevated risk. Examiners are focusing on whether firms have implemented policies and procedures reasonably designed to ensure that such information is relevant to the intended audience and accompanied by sufficient disclosures. This includes clarity around assumptions, limitations, and the conditions under which such performance was derived.
The expanded allowance for testimonials and endorsements has introduced additional complexity. Firms must ensure that all required disclosures are provided, including whether compensation was paid and any material conflicts of interest. In practice, deficiencies are often tied not to the use of testimonials themselves, but to incomplete disclosure or inconsistent application across platforms.
Marketing Rule compliance is closely tied to recordkeeping obligations. Examiners are increasingly requesting documentation that supports not only the final marketing output, but also the review and approval process. This includes drafts, substantiation files, and evidence of internal compliance sign-off prior to distribution.
At RegComp, we advise clients to treat Marketing Rule compliance as an ongoing supervisory function rather than a one-time implementation exercise. As marketing channels expand—particularly across digital platforms—firms should ensure that their policies, procedures, and internal review processes remain aligned with current usage.
Key enforcement themes under the SEC Marketing Rule in 2026, with a focus on substantiation, disclosures, and recordkeeping.
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