The SEC Marketing Rule and Content: What Advisors Can (and Can't) Say

Important note: This article is general educational information about the SEC Marketing Rule as it applies to content and advertising. It is not legal or compliance advice and does not constitute a compliance review of any specific content or activity. Investment advisers should work with their own legal counsel and compliance professionals to evaluate how the rule applies to their specific situation.

The SEC Marketing Rule — formally Advisers Act Rule 206(4)-1 — took effect in November 2022 after a multi-year rulemaking process that replaced the 1961 advertising rule and the 1979 cash solicitation rule. For advisors building a content practice, a podcast, or any public-facing communications strategy, understanding what the rule requires (and what it now permits) is foundational. The old framework was simple and restrictive; the new one is more flexible, but the conditions matter.

What Counts as an "Advertisement"

The rule's definition of advertisement is broad and has two prongs.

The first prong covers any direct or indirect communication an investment adviser makes to more than one person, or to one or more persons if it offers the same services as offered to other clients, that offers the adviser's investment advisory services. This includes website content, podcast episodes, social media posts, email newsletters, and most public-facing written or audio content.

The second prong covers testimonials and endorsements — solicitations to become a client — which are treated separately and subject to additional conditions.

For advisors producing content, the practical implication is that virtually everything distributed publicly falls under the rule's scope. A podcast episode discussing retirement planning strategies, a LinkedIn article on Roth conversion planning, a video walking through how to evaluate a financial plan — all of these are advertisements under the definition. That doesn't mean they're prohibited. It means they're subject to the rule's conditions. See FINRA Rule 2210 for parallel requirements applicable to broker-dealer registered representatives.

The General Prohibitions

The rule contains seven broad prohibitions that apply to all advertisements. They are worth understanding directly, not through paraphrase.

An advertisement may not:

1. Include any untrue statement of a material fact, or omit a material fact necessary to make the statement not misleading
2. Make a material claim or statement that is unsubstantiated
3. Include information that is misleading by implication, selective presentation, or otherwise
4. Discuss potential benefits without fairly presenting the associated material risks or limitations
5. Reference specific investment advice that was profitable without also disclosing the losses from non-profitable advice
6. Include or exclude performance results or present time periods in a manner that is not fair and balanced
7. Otherwise be materially misleading

For content producers, the most operationally significant of these are the substantiation requirement and the fair-and-balanced requirement. If you make a claim — about your investment approach, about a market view, about a strategy's outcomes — you need to be able to substantiate it. And if you discuss an approach's benefits, you need to fairly present the risks.

This does not prohibit strong, specific opinions. It does require that those opinions be grounded in fact and that material caveats are included. An advisor who says "we believe concentrated equity positions in quality businesses outperform over long periods" and can point to their actual track record or third-party research supporting that view is on solid ground. An advisor who implies their strategy always outperforms without disclosing the conditions under which it underperforms is not.

Testimonials and Endorsements: Now Permitted with Conditions

One of the most significant changes in the 2022 rule is the conditional permission of testimonials and endorsements. Under the prior rule, any testimonial about the adviser was prohibited. Under the new framework, testimonials (statements by a current client about their experience) and endorsements (statements by a non-client, such as a referral partner or center of influence) are permitted, subject to specific conditions.

Required disclosures for testimonials and endorsements include: a clear and prominent disclosure that the statement is from a client or non-client promoter, disclosure of whether compensation was provided, and a disclosure that the experience of the testimonial giver may not be representative of all clients.

Oversight. The adviser must have a reasonable basis for believing the testimonial or endorsement complies with the rule — meaning you can't simply post any review you receive without evaluating it against the conditions.

Agreements. For paid testimonials and endorsements above certain thresholds, the rule requires a written agreement with the promoter.

Disqualified persons. The rule prohibits use of testimonials or endorsements from persons subject to certain legal or regulatory disqualifications.

For advisors, this opens meaningful content territory. Inviting a satisfied client to discuss their planning experience on a podcast (with proper disclosure and consent), collecting and publishing client reviews (with required disclosures), and leveraging centers of influence to refer clients (under a written agreement with appropriate disclosure) are all now permissible activities. See the SEC Marketing Rule glossary entry for a quick-reference summary.

Performance Advertising

Performance advertising — presenting investment results to prospective clients — is one of the more technically demanding areas of the rule. The conditions are specific and consequential.

The rule generally requires that performance results be presented on a net-of-fees basis. Gross performance results may be shown alongside net results but may not be shown without the net results also being present. This is significant for advisors who have historically presented gross returns in marketing materials.

Hypothetical performance — including back-tested results, model portfolio performance, and targeted or projected returns — is permitted under the rule but comes with additional obligations: the adviser must have policies and procedures governing the use of hypothetical performance, must include required disclosures, and must consider whether the hypothetical performance is appropriate for the intended audience.

Time periods must be presented fairly. Cherry-picking a favorable 12-month window and presenting it as representative performance would violate the general prohibitions.

For most content-focused advisors — those producing podcasts, articles, and educational material rather than pitch books with composite returns — performance advertising is not a frequent concern. But any content that cites historical results, even illustratively, should be reviewed for compliance with these conditions.

Recordkeeping Requirements

Under existing SEC rules implementing the recordkeeping requirements of the Advisers Act, investment advisers are required to retain copies of all advertisements for a period of five years from the date of last use, with the first two years in an easily accessible location.

This applies to:

• Website content and landing pages
• Social media posts, including LinkedIn articles and posts
• Podcast episodes and associated show notes
• Email newsletters and drip campaigns
• Any document that meets the definition of advertisement

The practical implication for content producers is that a recordkeeping system needs to be in place before you begin publishing. Many advisors use compliance technology vendors who automate the capture and retention of digital content. Manual processes — downloading your own website pages periodically, saving social posts — are technically compliant but operationally fragile. For a production workflow that includes compliance archiving, see how to start a podcast as a financial advisor.

The FINRA Overlay for Dually Registered Advisors

Advisors who are dually registered — both as investment advisers and as registered representatives of a broker-dealer — are subject to both the SEC Marketing Rule and FINRA's communication rules under FINRA Rule 2210. FINRA 2210 has its own definitions, pre-approval requirements for certain retail communications, and filing requirements with FINRA's Advertising Regulation department.

The two frameworks overlap substantially but are not identical. Dually registered individuals should confirm with their compliance department which framework applies to which activities and whether pre-filing with FINRA is required for specific content types. See our guide to content marketing for financial advisors for how to build compliance review into a sustainable content workflow.

What This Means for Building a Content Practice

The practical takeaway from the 2022 rule, for advisors building a content practice, is that the regulatory environment has become meaningfully more permissive — but the compliance infrastructure requirements have become more explicit.

A podcast episode discussing tax-efficient retirement income strategies, with no specific performance claims, no testimonials, and appropriate risk disclosures where relevant, is a relatively low-risk content type. The same episode with a client testimonial, presented without the required disclosures, creates a compliance problem.

The advisors who navigate this well do three things: they work with compliance before publishing anything new (not after), they build review time into their production schedule as a fixed step, and they maintain a systematic recordkeeping workflow from the start.

The content opportunity in financial services is real. The compliance requirements are manageable. The advisors who treat them as a framework rather than a barrier build durable content practices that generate trust at scale.

Reminder: The above is general educational information about the SEC Marketing Rule. Nothing in this article constitutes legal or compliance advice. Before publishing content, launching advertising campaigns, or using testimonials and endorsements, investment advisers should consult with their own legal counsel and compliance professionals to confirm that their specific activities comply with applicable law and regulation.

Working with Milemarker Studio

Milemarker Studio produces content and podcasts for financial services firms with compliance-ready workflows built in — recorded and packaged to support your firm's review process rather than complicate it. If you're building a content practice and want a production partner who understands the regulatory context, let's talk.