SEC Marketing Rule Compliance in 2026: The Deficiencies Examiners Are Finding — and What to Fix Before They Show Up

The SEC’s Division of Examinations issued a risk alert on December 16, 2025 with the kind of title compliance teams should read twice: “Additional Observations Regarding Advisers’ Compliance with the Advisers Act Marketing Rule.”

Additional. As in, this is the third major Marketing Rule alert since the rule took effect in 2022. And based on the deficiencies the staff is still finding, they clearly feel the message isn’t getting through.

If you’re a registered investment adviser and you use testimonials, client endorsements, or third-party ratings in your marketing — which is most of you — this is a blueprint for your next exam.

TL;DR

• The December 2025 risk alert flagged persistent Marketing Rule deficiencies in testimonials, endorsements, and third-party ratings — the same areas the SEC has flagged since 2022
• The most common failure: disclosures that aren’t “clear and prominent,” including hyperlinked disclaimers and small-font disclosures the SEC considers inadequate
• Advisers who receive more than $1,000 in compensation from a promoter need a written agreement — many firms are missing it
• The policy-vs-practice gap is what actually gets firms in trouble: written programs that look compliant, marketing materials that aren’t
• The SEC settled with nine advisers for Marketing Rule violations in September 2024 and brought an enforcement action in September 2025 — this rule has teeth

What the Marketing Rule Actually Requires

Rule 206(4)-1 under the Investment Advisers Act took effect November 4, 2022. It replaced two older rules — the Advertising Rule (Rule 206(4)-1, the original version) and the Cash Solicitation Rule (Rule 206(4)-3) — and consolidated them into a single framework.

The rule prohibits several categories of false or misleading advertising and imposes specific disclosure, oversight, and recordkeeping requirements when advisers use:

• Testimonials: Statements by current clients about their experience with the adviser
• Endorsements: Statements by non-clients or former clients about the adviser
• Third-party ratings: Ratings from publications, ranking lists, or similar sources

It also governs performance advertising (including hypothetical performance), references to specific investment picks, and the content of all “advertisements” broadly defined.

The parts that keep generating deficiency letters are testimonials, endorsements, and third-party ratings — which is exactly what the December 2025 alert focuses on.

What the December 2025 Risk Alert Actually Found

The staff reviewed marketing materials from multiple registered investment advisers. While some firms were doing it right, the deficiencies the staff identified cluster around the same failures that appeared in the 2022 and 2024 alerts.

Testimonials and Endorsements: The Disclosure Problem

The Marketing Rule requires that when an advertisement includes a testimonial or endorsement, the advertisement must clearly and prominently disclose:

1. Whether the person giving the testimonial or endorsement is a current client
2. Whether the endorser received compensation (cash or non-cash)
3. A brief statement of any material conflicts of interest the endorser has

The December 2025 alert identified two recurring failure modes:

Hyperlinked disclosures. Advisers put the required disclosure behind a hyperlink — “click here for disclosures” — rather than in the advertisement itself. The SEC has been explicit: hyperlinked disclosures do not satisfy the “clear and prominent” standard. The disclosure must appear alongside the testimonial, at the same time the consumer sees it.

Font and placement. Disclosures placed in smaller font than the surrounding content, in a footer, or visible only after scrolling past the testimonial are not “clear and prominent.” If a client quote occupies three lines in 14-point font on your website and the required disclosure appears in 9-point grey text at the bottom of the page, that’s a problem.

Promoter Agreements: The Missing Written Contract

When a firm pays a promoter — an influencer, a referring advisor, a podcast host — more than $1,000 in compensation during the prior 12-month period, the Marketing Rule requires a written agreement between the adviser and the promoter covering specific terms.

The December 2025 alert found advisers who had compensated promoters at this level without the required written agreement in place. This is a clean, documentable violation — either the contract exists or it doesn’t.

The Policy-Practice Gap

This is the one that should worry compliance officers most. The alert noted that some firms had adopted written compliance policies that, on paper, addressed Marketing Rule requirements. But those firms were still disseminating advertisements that violated the rule.

The gap between your written program and what’s actually in the market is what the Division of Examinations tests. Having a policy that says “all testimonials must include disclosures” doesn’t protect you if your marketing team hasn’t read it or your website hasn’t been audited in 18 months.

How Enforcement Has Escalated

The December 2025 alert isn’t background noise. It follows a consistent enforcement escalation.

September 2024: The SEC settled with nine investment advisers for Marketing Rule violations covering unsubstantiated testimonials, missing disclosures, and advertisements that weren’t balanced presentations. The coordinated settlement action sent a clear message about exam-to-enforcement escalation.

September 2025: The SEC brought an enforcement action against a firm whose marketing materials advertised that the firm “refuse[d] all conflicts of interest.” The problem: the firm’s own Form ADV disclosed conflicts of interest. That direct contradiction between marketing claims and disclosed facts is exactly the kind of UDAP-adjacent violation that draws referrals from exam staff to enforcement.

January 2026: The SEC published updated Marketing Rule FAQs with new guidance on how model advisory fees must be presented in performance calculations, and clarified SRO-related disqualifications under the testimonial and endorsement sections. The FAQs aren’t optional reading — they’re the SEC’s interpretation of what compliance looks like in practice.

The 2026 examination priorities, published November 2025, explicitly list the Marketing Rule as a focus area. Read alongside the December 2025 risk alert, the signal is clear: if you haven’t done a Marketing Rule compliance audit in the past year, you’re behind.

The Three-Part Compliance Audit You Should Be Running

If you’re a registered investment adviser that uses testimonials, endorsements, or third-party ratings, here’s the practical remediation sequence:

Step 1: Content Inventory

Pull every testimonial, endorsement, and third-party rating currently live in your marketing ecosystem:

• Website (including older blog posts, about pages, and case study pages)
• LinkedIn company page and employee profiles sharing firm content
• Pitch decks and client presentations
• Email marketing templates
• Press releases and media mentions
• Social media scheduled content

For each piece: does it include a testimonial or endorsement? Does it display a third-party rating or ranking?

Step 2: Disclosure Audit

For each identified item, verify:

Any “Fail” is a pre-exam finding. Fix it before the examiner does.

Step 3: Promoter Agreement Check

For every promoter or third party who has received compensation related to endorsements or referrals in the prior 24 months:

• Calculate total compensation received in each 12-month period
• If any period exceeds $1,000: verify a written agreement exists and is current
• If no written agreement exists: get one executed before the next marketing cycle

Third-Party Ratings: The Hidden Compliance Gap

Many advisers display ratings from publications like Barron’s, Forbes, or various “Best of” lists without realizing the Marketing Rule applies. If your website says “Named to Forbes Best-in-State Wealth Advisors 2025,” that’s a third-party rating — and the Marketing Rule requires specific disclosures.

Required disclosures for third-party ratings include:

• How the rating was obtained
• Whether compensation was paid to obtain the rating or appear on the list
• The period covered by the rating
• The methodology used to determine the rating

The December 2025 alert flagged advisers who were displaying rankings without these disclosures, or who were displaying rankings that were outdated without adequate context.

So What? What This Means for Your Compliance Program

The Marketing Rule isn’t a one-time compliance project. It’s a continuous monitoring obligation — every new testimonial, every updated website section, every social media post from firm employees that endorses the firm’s capabilities.

The practical implications:

Annual marketing audits are table stakes. The December 2025 alert found deficiencies in firms that had written policies — which means having a written program isn’t enough if you don’t test whether it’s being followed. Annual audits of live marketing materials against your Marketing Rule compliance checklist are what exam staff expects to see.

Your social media policy needs a Marketing Rule section. Employee LinkedIn posts that share client success stories or ask for testimonials create Marketing Rule exposure if they’re attributable to the firm. Your social media policy should specifically address testimonials, endorsements, and disclosures.

Pre-publication review is a control, not overhead. Building a Marketing Rule compliance review into the content publication workflow — where marketing materials are reviewed against the rule before going live — is far cheaper than remediating deficiencies after an exam. One deficiency letter with a 180-day remediation obligation will consume more compliance capacity than the review would have.

When you do receive exam findings related to the Marketing Rule, the response needs to be specific: what failed, why it failed, what was fixed, and what controls you’ve implemented to prevent recurrence. Track those commitments. A structured issues management tracker makes the difference between a clean closure and a follow-up exam.

For advisers preparing for 2026 examinations, the Marketing Rule sits alongside fiduciary duty, Reg S-P, and cybersecurity as the areas where the SEC’s 2026 examination priorities are most explicit. Exam readiness isn’t theoretical — it’s whether your marketing materials can survive the same audit an examiner would run.

External Resources

• SEC Division of Examinations — December 2025 Marketing Rule Risk Alert
• SEC.gov — Marketing Rule overview and FAQ
• SEC 2026 Examination Priorities (November 2025)
• Mayer Brown — SEC Exam Staff’s Latest Risk Alert on the Marketing Rule
• Paul Hastings — SEC Issues Another Risk Alert to Investment Advisers