Looking Back to Move Ahead: SEC Guidance and the New Marketing Rule

Looking Back to Move Ahead: SEC Guidance and the New Marketing Rule
11/30/2021

Our blog post series on the new SEC marketing rule covers several topics, including the expanded definition of advertising, leveraging technology, testimonials and endorsements, performance advertising, hypothetical performance, third-party ratings, Form ADV and recordkeeping requirements, reviewing and approving ads, and social media advertising. In this post, we give an update on the key SEC guidance that will be modified or withdrawn on the rule compliance date of November 4, 2022.

The Division of Investment Management (IM) recently issued an information update which lists over 200 statements that have, for decades, provided advisers with marketing- and advertising-related guidance. These statements pertain specifically to the advertising and cash solicitation rules, which were both replaced by the new marketing rule. Some statements on the list, including the influential 1986 Clover no-action letter, will be withdrawn on the rule compliance date, while other statements relating to the advertising and cash solicitation rules will be modified. See Appendix A of the IM information update for the complete list.

The IM information update also clarifies that advisers shouldn’t expect any additional SEC statements about disqualification under the new marketing rule that results from nullified solicitor disqualification no-action letters. Instead, the SEC encourages all advisers, with or without a disqualifying event, to review their compliance policies and procedures alongside new rule requirements.

As always, we're here to help you make sense of the latest changes in regulatory compliance. If you need assistance with implementing the new marketing rule or understanding how this update affects your RIA firm, please get in touch. Also, check out our ultimate guide to the new SEC marketing rule for our take on various aspects of the new rule.