A Checklist for Advisers to Guide Compliance With the Marketing Rule

The so-called advertising rule – Rule 206(4)‑1 under the Investment Advisers Act of 1940 – became law in 1961. In recognition of the significant developments in technology and methods of communicating with current and potential investors in the ensuing 60 years, the SEC approved amendments to the advertising rule, as well as the cash solicitation rule, to modernize them and aggregate guidance from no‑action letters and enforcement actions. The resulting amended advertising rule – now referred to as the “Marketing Rule” – took effect on May 4, 2021, with investment advisers required to be in compliance within the coming weeks. Given that advisers have had 18 months to modify their policies and procedures to comply with the Marketing Rule, they should expect the SEC to scrutinize their marketing practices soon after the compliance deadline. This article explains the key differences between the old advertising and cash solicitation rules and the new Marketing Rule; discusses the imminent compliance deadline; provides a checklist developed by Krista Zipfel, former director of Focus 1 Associates LLC and a compliance consultant with more than 20 years’ experience, that advisers can use to help comply with the rule; and explores the relationship between advisers’ efforts to comply with the Marketing Rule and the SEC’s flurry of proposed rulemaking. See our two-part series on navigating the Marketing Rule: “Updated Testimonial Rule and Differences From the Proposed Advertising Rule” (Feb. 16, 2021); and “Form ADV Updates and Changes to Non‑Standard Performance Calculations” (Feb. 23, 2021).

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