SEC Marketing Rule - Comparison Claims and Substantiation

Comparison claims are everywhere in adviser marketing: “lower fees,” “top quartile,” “outperformed peers,” “better downside protection,” “#1 in our category,” or “beat the benchmark.” Under the SEC Marketing Rule, the core problem is rarely the intent to deceive; it’s operational slippage. The claim gets shortened for a social post, a footnote drops off a slide, a benchmark definition changes, or someone relies on an outdated third-party ranking without retaining the underlying methodology and dates.

For a CCO or GRC lead, the fastest path to control is to treat comparison claims like regulated product statements: (1) define what counts as a comparison claim, (2) require pre-dissemination approval with claim-level substantiation, (3) attach the exact disclosures that make the comparison non-misleading, and (4) preserve immutable evidence of what was actually disseminated and why it was supportable at the time.

This page translates the “false or misleading advertisement” standard into an execution-ready program: roles, workflow steps, required artifacts, and the exam questions your team should be able to answer without scrambling. The SEC has stated it will focus on Marketing Rule compliance in examinations, which makes your substantiation process a practical exam-readiness requirement, not a theoretical best practice. ¹

Regulatory text

Rule standard (advertising anti-fraud). The Marketing Rule provides that it is fraudulent, deceptive, or manipulative for an investment adviser to disseminate an advertisement that includes any untrue statement of a material fact, or that is otherwise false or misleading. ²

What that means for comparison claims and substantiation (operator view).

• A comparison claim is high-risk because it implies a measurable relationship (“better than,” “lower than,” “ranked above,” “outperformed,” “most trusted”) that can be tested.
• You must be able to show, with records, that the claim was accurate and not misleading in context at the time you published it. If you cannot substantiate it, you should not publish it.
• “Not misleading” is broader than “factually true.” A statement can be technically true but still misleading if it omits material conditions, definitions, time periods, limitations, or if it presents a selective slice that creates the wrong impression. ²

Plain-English interpretation (what the SEC expects you to be able to prove)

For each comparison claim in any advertisement, you should be able to answer four questions from your files:

1. What exactly did we claim? Exact wording, channel, and final disseminated version.
2. Compared to what, using what method? Benchmark/peer set/ranking source, inclusion criteria, and calculation methodology.
3. What evidence supported it on the publication date? Data extracts, calculations, third-party reports, assumptions, and approvals.
4. What context was necessary to keep it fair and balanced? Definitions, time periods, material limitations, and risk language that prevents a misleading implication. ²

Who it applies to

Entities.

• Registered Investment Advisers (RIAs) and their supervised persons creating or disseminating “advertisements” under the Marketing Rule framework. ²

Operational context (where it shows up).

• Website pages, pitch decks, factsheets, blogs, social posts, videos, podcasts, emails, RFP responses reused as marketing collateral, model marketplace listings, and third-party platforms where your content appears under your direction.
• Comparisons against indices/benchmarks, peer universes, competing strategies, alternative account types, or your own prior versions (“now with lower fees,” “improved risk controls”).

What you actually need to do (step-by-step)

1) Define “comparison claim” for your firm and inventory where they occur

Create a short internal standard that flags comparison language, including:

• “Outperform/underperform,” “beat,” “top,” “best,” “leader,” “#1”
• “Lower fees/costs,” “more tax-efficient,” “less drawdown,” “higher Sharpe”
• “Rankings/awards,” “rated,” “reviewed,” “most trusted” Then inventory channels and owners: Marketing, IR, Sales, Portfolio teams, and any third party that posts your content.

Deliverable: comparison-claim taxonomy + channel inventory.

2) Implement claim-by-claim substantiation as a gate, not an afterthought

Require pre-dissemination compliance review for any advertisement containing a flagged comparison claim. Your reviewer should:

• Extract each claim into a “claims table” (one row per claim).
• Require a substantiation reference for each row (data file, report, calculation, or memo).
• Confirm the claim and the support use the same definitions and dates.

Practical control: block publishing until the claims table is complete and approved.

3) Standardize your “fair and balanced” disclosure patterns for comparisons

Create reusable disclosure modules that can be attached consistently:

• Benchmark comparisons: identify the benchmark, time period, whether dividends are included, and why it’s appropriate.
• Peer/ranking comparisons: identify the ranking entity, category, criteria, date of award/ranking, whether compensation was paid, and where to find more detail.
• Fee comparisons: define which fee schedule is used, what’s included/excluded, and what investor circumstances could differ.

Do not rely on “see disclosures” if the channel makes that impractical. If a short-form channel cannot carry needed context, either rewrite the claim to be non-comparative or route to a controlled landing page with the full context.

4) Lock recordkeeping to the final disseminated version (immutable archive)

You need to retain:

• The final, published artifact (PDF, screenshot, HTML capture, video file).
• The approval record (who approved, when, and what version).
• The substantiation package (data and workpapers).
• The disclosure text that was actually attached to that version.

Immutable matters because a “living deck” or editable webpage can drift after approval. Your archive should preserve what a prospect saw.

5) Build a sampling and surveillance loop across channels

Because comparisons often mutate across channels, run periodic checks:

• Sample published materials across web, social, decks, and third-party listings.
• Verify the claim wording matches the approved version.
• Confirm disclosures traveled with the claim.
• Log remediation and root cause (template issue, training gap, workflow bypass).

The SEC has signaled ongoing exam focus on Marketing Rule compliance, so treat monitoring as an exam-ready control, not a nice-to-have. ¹

6) Train the front line with “allowed / not allowed without compliance”

Give Sales and Marketing a one-page guide:

• Examples of prohibited shortcuts (e.g., “best,” “#1,” “guaranteed,” “always,” “never lost money”).
• Examples of acceptable framed claims with required qualifiers and substantiation.
• A hard rule: no comparison language goes out without a substantiation ticket and approval.

Required evidence and artifacts to retain (exam-ready checklist)

Maintain a Substantiation File per advertisement (or per campaign/version) that includes:

Artifact	What it proves	Owner
Final disseminated copy (frozen)	What was actually said	Marketing
Claims table (claim-by-claim)	You identified each comparison claim	Compliance
Substantiation support (data/report)	Reasonable basis for each claim	Data owner / Portfolio / Finance
Calculation memo/workpapers	How you computed the comparison	Analyst/Portfolio Ops
Disclosure module version	Context required to avoid misleading impression	Compliance/Legal
Approval record and dates	Governance and timing	Compliance
Distribution list/channels	Where it appeared	Marketing Ops
Exception log (if any)	How deviations were handled	Compliance

If you use a system like Daydream, the practical win is linkage: each claim row points to the evidence, the approved disclosure text, and the immutable archived output, so you can answer exam requests without rebuilding history from email threads.

Common exam/audit questions and hangups

Expect questions that test whether your process is real and repeatable:

• Show me the substantiation for this specific “outperformed” claim and the underlying calculation.
• How did you select the benchmark or peer group, and why is it appropriate for the strategy?
• Who reviews and approves marketing, and how do you prevent unapproved materials from being used?
• How do you ensure disclosures remain attached when content is repurposed across channels?
• Produce the final disseminated version for the last campaign and the related approval record. ²

Hangups that slow production: missing version control, scattered support in personal drives, and “draft” decks that differ from what Sales actually sent.

Frequent implementation mistakes (and how to avoid them)

1. No consistent definition of the comparator.
   Fix: bake benchmark/peer definitions into templates and require them in the claims table.

2. Cherry-picked time periods or selective presentation.
   Fix: set internal standards for time horizons and require documentation of why the chosen period is not misleading.

3. Rankings/awards posted without retaining the basis.
   Fix: store the third-party methodology, date, category, and any compensation details in the substantiation file.

4. Disclosures don’t travel with the claim.
   Fix: design channel-specific “minimum viable disclosure” rules; block publishing when the channel cannot carry required context.

5. Approvals exist, but not for the final version.
   Fix: require final-file hashing, immutable archiving, or system-enforced versioning before dissemination.

Enforcement context and risk implications

The Marketing Rule’s anti-fraud standard turns unsupported comparison claims into a regulatory risk because they can be “false or misleading” even when based on incomplete context. ² The SEC Division of Examinations has stated it will focus on compliance with the Marketing Rule, which increases the likelihood that exam staff will test your substantiation process and recordkeeping under real-world time pressure. ¹

Practical 30/60/90-day execution plan

First 30 days (stabilize publishing)

• Freeze new comparison claims unless they go through compliance review with a claims table.
• Publish a comparison-claim definition and a “no substantiation, no publish” rule.
• Stand up an immutable archive approach for final disseminated items (even if manual at first).
• Triage top-risk materials already in market (website performance pages, flagship pitch decks, factsheets).

Days 31–60 (standardize and scale)

• Build disclosure modules for benchmark, peer, fee, and ranking comparisons.
• Create templates: claims table, calculation memo, substantiation checklist.
• Train Marketing and Sales on approved language patterns and escalation.
• Start periodic cross-channel sampling and a remediation log.

Days 61–90 (operational maturity)

• Automate routing and evidence linkage in your marketing review workflow (ticketing + archive + evidence store).
• Add controls for third-party posting and republication (approved-only libraries, watermarking, expiration dates).
• Run a mock exam request: pick a live claim and produce the full substantiation file quickly.
• Tune surveillance based on findings (where disclosures drop, where claims mutate, which teams bypass workflow).

Frequently Asked Questions

What counts as a “comparison claim” under the SEC Marketing Rule?

Any statement that implies you are better or worse than a benchmark, peer set, competitor, category, or prior state can function as a comparison claim. If a reasonable reader would infer a measurable comparison, route it through substantiation and compliance review. ²

Can we say “lower fees than competitors” if we don’t name the competitors?

You still need a defined comparator set and evidence supporting the statement as written, plus context about what fees are included. If you cannot define “competitors” in a way you can document and defend, rewrite the claim to a factual fee schedule description. ²

Do we need substantiation for qualitative comparisons like “more disciplined risk management”?

If the statement implies a verifiable superiority or a specific outcome versus others, treat it as requiring support and context. If it is purely descriptive, keep it accurate, avoid implying performance outcomes, and maintain the basis for the description. ²

How should we handle third-party rankings or awards in ads?

Retain the ranking/award source material, the date, category criteria, and the basis for the ranking in your substantiation file, and ensure the ad is not misleading by omission. If the third party allows only a badge, keep the full methodology in your records even if it is not displayed. ²

What if a social post is too short to include all comparison disclosures?

If required context cannot reasonably be delivered in that format, do not publish the comparison claim in that channel. Use a non-comparative statement or drive to a controlled landing page where the full claim and disclosures appear together, and archive what was disseminated. ²

What’s the minimum recordkeeping set we should be able to produce during an exam?

Produce the final disseminated version, the approval record, the claim-by-claim substantiation references, and the disclosure text that was associated with that version. Build your workflow so these items are linked and retrievable by campaign and date. ²

Footnotes

1. 2025-exam-priorities

2. 17 CFR 275.206(4)-1