Since the Marketing Rule compliance date of November 4, 2022, the SEC Division of Examinations and Division of Enforcement have steadily increased their focus on how investment advisers market their services. By early 2026, marketing practices have become one of the top deficiency areas cited in routine examinations, and several notable enforcement actions have underscored the SEC willingness to pursue firms that fail to meet the new standard.
SEC Examination Focus
The SEC published risk alerts in late 2023 and again in December 2025 highlighting common deficiencies observed during Marketing Rule examinations. Among the most frequently cited issues were advisers failing to substantiate material claims of fact, presenting performance without required net-of-fee figures, using testimonials without the mandated disclosures, and disseminating hypothetical performance to broad audiences without appropriate policies and procedures. These themes have continued to dominate examination findings through 2025 and into 2026.
The December 16, 2025 risk alert — the only risk alert issued by the SEC Division of Examinations in all of 2025 — focused specifically on testimonial/endorsement disclosure failures and third-party rating compensation disclosures, signaling that these remain among the Division's highest enforcement priorities.
Recent Enforcement Actions
Recent enforcement actions have targeted both large and small advisory firms. Several cases involved advisers presenting misleading performance track records that either inflated returns or omitted material information about the strategy risk profile. Others involved the use of client testimonials on websites and social media without any of the required disclosures about compensation or conflicts of interest. Penalties have ranged from censures and undertakings to significant financial settlements, depending on the severity and duration of the violations.
Common Deficiency Areas
Common deficiency areas identified in 2025 and 2026 examinations include inadequate policies and procedures specifically tailored to the Marketing Rule, failure to maintain required books and records under amended Rule 204-2, lack of a formalized review and approval process for marketing materials, and insufficient training of advisory personnel on the Marketing Rule requirements. Examiners have also focused on the accuracy of performance advertisements, particularly for advisers claiming outperformance relative to market benchmarks.
2026 Exam Priorities
The SEC examination priorities letter for 2026 explicitly lists marketing practices as a focus area, with particular attention to the use of social media, the presentation of AI-driven investment strategies, and compliance with the hypothetical performance provisions. Examiners are increasingly requesting social media archives and using technology to cross-reference publicly available marketing materials with the disclosures and performance records maintained in adviser files.
Preparing for Examinations
Firms can prepare for Marketing Rule examinations by conducting an internal mock exam that mirrors the SEC typical document request list. Key documents to have organized include a complete inventory of advertisements, performance calculation work papers, testimonial and endorsement records with associated disclosures and written agreements, third-party rating documentation, social media policies and archives, and records of the pre-use review and approval process for all marketing materials.
Proactive Compliance Measures
Proactive compliance measures include engaging an independent compliance consultant to review marketing materials annually, subscribing to SEC examination priority and risk alert publications, participating in industry associations that track enforcement trends, and investing in compliance technology that automates the review and archiving of marketing content. Firms that demonstrate a robust compliance culture and a good-faith effort to meet the Marketing Rule requirements are more likely to receive favorable treatment when deficiencies are identified.
January 2026 FAQ Update: New Guidance on Fees and Promoters
In January 2026, the SEC's Division of Investment Management published two new Marketing Rule FAQs providing important clarifications. The first addresses model fees vs. actual fees in performance advertising, confirming that Footnote 590 of the Adopting Release is not prescriptive — advisers may use various means to illustrate fee effects on performance. The second FAQ provides conditions under which advisers may compensate promoters subject to SRO final orders, offering practical relief for firms navigating the testimonial and endorsement provisions.
The trajectory of enforcement suggests that the SEC will continue to intensify its focus on marketing practices. Advisers who have not yet fully implemented the Marketing Rule requirements should prioritize remediation efforts, as the window for regulatory leniency that typically accompanies the adoption period of new rules has effectively closed.