Since the Marketing Rule took effect on November 4, 2022, the SEC Division of Examinations has issued four separate risk alerts on adviser advertising — the most recent on December 16, 2025 — each flagging the same recurring deficiencies.
That the exam staff has returned to this one rule four times in three years tells you what you need to know: marketing compliance remains one of the most persistently cited problem areas for registered investment advisers, and adopting the Marketing Rule did not make the deficiencies go away. The alerts (September 19, 2022; June 8, 2023; April 17, 2024; and December 16, 2025) are qualitative — they describe the categories of problems examiners see rather than publishing a single failure rate — but read together they map the exact mistakes that keep surfacing, from unsubstantiated performance claims to missing testimonial disclosures.
The Deficiency Pattern Across Firm Sizes
Statistical analysis of SEC examination outcomes reveals that marketing deficiencies are not concentrated among small or newly registered firms, though these populations do tend to exhibit higher rates. The deficiency pattern extends across firm size categories, business models, and geographic regions. Large advisory firms with dedicated compliance teams are cited for marketing deficiencies at rates that, while lower than smaller firms, still exceed rates for most other compliance categories.
Most Common Failure Points
The most common failure points identified in examinations fall into predictable categories:
- Performance advertising violations (failing to present net-of-fee returns, omitting required time periods, cherry-picking results)
- Testimonial and endorsement violations (inadequate disclosures, missing written agreements with promoters)
Size-Based Compliance Challenges
Firm size correlation in marketing deficiencies is nuanced. Smaller firms tend to struggle with foundational issues such as lacking written advertising review procedures, failing to maintain advertising files, or not having designated personnel responsible for marketing compliance. Larger firms are more likely to have procedures in place but face challenges with consistent implementation across multiple offices, teams, or marketing channels. The complexity of coordinating marketing compliance across a large organization creates execution risks that even well-resourced compliance programs struggle to eliminate.
Comprehensive Remediation Strategies
Remediation strategies for firms that have received marketing-related deficiency findings should be comprehensive and documented. Effective remediation goes beyond correcting the specific deficiency to addressing the underlying root cause. If the deficiency resulted from inadequate procedures, the procedures should be revised and the revision documented. If the deficiency resulted from insufficient training, training should be enhanced and attendance documented. If the deficiency resulted from a technology gap, appropriate tools should be implemented.
Proactive Compliance Approaches
Proactive compliance approaches can help firms avoid becoming part of the deficiency statistics. The most effective firms:
- Conduct regular self-assessments using SEC published examination priorities as benchmarks
- Invest in compliance technology that automates advertising review and recordkeeping
- Conduct quarterly audits of marketing materials across all channels
- Foster a culture where marketing and compliance teams work collaboratively
The Systemic Challenge
The persistence of high marketing deficiency rates suggests that the problem is systemic rather than the result of isolated bad actors. The Marketing Rule itself is complex, with nuanced requirements that vary by content type, audience, and distribution channel. Many advisory firms, particularly those without dedicated marketing compliance specialists, struggle to interpret and apply these requirements consistently. This complexity argues for both better regulatory guidance and greater investment in compliance technology and training.
Path to Excellence
Firms that want to stay off the examiners' deficiency list should adopt a continuous improvement mindset. This means not only meeting the minimum requirements of the Marketing Rule but building margin into the compliance program through more conservative policies, more frequent testing, and a willingness to invest in the tools and training needed to sustain excellence over time. The firms with the strongest marketing compliance records tend to view compliance not as a constraint on marketing but as a framework that enhances credibility and builds client trust.