SEC Marketing Rule - Performance Advertising

To meet the sec marketing rule - performance advertising requirement, you must ensure any performance advertising you disseminate is not untrue and not otherwise false or misleading, and you can prove that with contemporaneous substantiation tied to the exact version distributed ¹. Operationally, build a pre-dissemination review, substantiation, and archiving workflow that works across every channel.

Key takeaways:

• Treat every performance claim as a regulated statement: approve it, substantiate it, disclose it, and archive it ¹.
• Examiners are focused on Marketing Rule compliance, so “we meant well” is not a defense; your evidence package matters ².
• Control drift across channels (website, decks, RFPs, social) or you can create a misleading “overall impression” even with technically correct lines ³.

Performance advertising is where marketing pressure and fraud risk collide. Under the SEC Marketing Rule, the baseline requirement is simple to state and easy to fail in practice: an investment adviser cannot disseminate an advertisement containing an untrue statement of material fact or that is otherwise false or misleading ¹. Performance content is especially prone to “misleading” outcomes because small omissions, cherry-picked time periods, inconsistent benchmarks, or a missing fee/expense context can change the investor’s takeaway.

This page is written for a CCO, Compliance Officer, or GRC lead who needs to operationalize the requirement quickly: what counts as a performance “claim,” how to run review and approvals, what proof to retain, and what tends to break during exams. The SEC has stated that Marketing Rule compliance is an examination focus ². That makes practical execution the job: get to a repeatable workflow, consistent disclosures, and retrieval-ready records across all channels and third parties that publish for you.

What the requirement means (plain English)

The rule prohibits you (as an investment adviser) from putting out performance advertising that is false (factually incorrect) or misleading (creates a wrong impression even if individual statements are technically true). The “misleading” part is where performance ads fail: omission of key context, inconsistent presentation, or selective framing can make the overall message deceptive ¹.

A workable operator test:

• Would a reasonable client/investor walk away with an incorrect understanding of results, risks, or comparability? If yes, treat it as misleading and fix the presentation or disclosures.
• Can you substantiate the claim from books-and-records quality data today, tied to the exact final ad? If no, the claim cannot ship.

Who it applies to (entity + operational context)

Applies to: Registered Investment Advisers disseminating “advertisements,” including performance advertising ¹.

Operationally, this hits:

• Website performance pages and downloadable tear sheets
• Pitch decks, due diligence questionnaires, and RFP/RFI responses
• Factsheets, market commentary with performance tables, and emails
• Social posts that reference returns, rankings, or “outperformance”
• Third parties acting for you (PR firms, placement agents, marketers) if they disseminate your claims under your direction or with your content. Treat them as part of your advertising control environment.

Regulatory text

“It shall constitute a fraudulent, deceptive, or manipulative act, practice, or course of business… for any investment adviser to disseminate any advertisement that includes any untrue statement of a material fact, or that is otherwise false or misleading.” ¹

What the operator must do: implement controls so performance advertising cannot be published unless (1) it is accurate, (2) it is not misleading in context, and (3) you can produce substantiation and the exact final version that was disseminated ¹. The SEC has signaled continued exam attention to the Marketing Rule, which raises the importance of execution evidence ².

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

1) Inventory every performance “surface area”

Create a channel map of where performance appears:

• Public web pages, PDFs, and investor portal content
• Presentation libraries (PowerPoint, data room templates)
• Sales enablement snippets (approved slides, “boilerplate” paragraphs)
• RFP database answers and email templates
• Social accounts and paid ads

Deliverable: a living Performance Advertising Inventory with owner, channel, and publishing method.

2) Define what counts as a “performance claim”

Write a short internal standard that flags content requiring performance review, including:

• Any stated return numbers, IRR, MOIC, alpha, Sharpe, drawdown
• “Outperformed,” “beat the benchmark,” “top quartile,” “best”
• Hypothetical/model performance references if used
• Performance rankings or awards that imply performance

Deliverable: a Performance Claim Taxonomy used by marketing and compliance as the routing trigger.

3) Build a pre-dissemination approval workflow (with claim-by-claim substantiation)

Require compliance approval before dissemination, and make the reviewer document substantiation per claim ³.

Minimum workflow fields:

• Ad name, channel, intended audience, date
• Version control (draft vX, final vY)
• Claims list (each performance claim as a line item)
• Substantiation reference for each claim (source report, calculation file, system of record extract)
• Required disclosures attached and versioned
• Approval decision + conditions

Practical tip: Make “no substantiation, no publish” non-negotiable. People stop arguing once it is a system rule.

4) Standardize performance calculation and presentation inputs

You need repeatable math and consistent sourcing. Create a standard “performance pack” produced by Finance/Operations (or whoever owns official numbers), then forbid marketing from re-keying results manually.

Contents of the pack (non-exhaustive):

• Approved performance tables for standard periods you use internally
• Benchmark data source and update cadence
• Fee and expense assumptions used in any net results, if applicable
• Date stamps and preparer/reviewer signoff

Deliverable: Performance Data Package published to a controlled folder with access logs.

5) Draft disclosures that prevent misleading “overall impression”

Because the prohibition includes “otherwise false or misleading,” your disclosures must address the common ways performance messages mislead ¹. Build a disclosure library that covers:

• What the performance represents (strategy, composite, account type)
• Time period and valuation date
• Whether results are gross or net (state clearly)
• Material assumptions and limitations if performance is not directly comparable across accounts

Deliverable: a versioned Performance Disclosure Library mapped to claim types and channels.

6) Control cross-channel consistency (drift control)

Channel inconsistencies are a predictable failure mode: the website gets updated, the deck doesn’t, RFP answers lag, and a social post compresses language until it changes meaning. Run periodic sampling across channels and log remediation ³.

Mechanics:

• Sample content by channel and by strategy
• Compare claims and disclosures to the approved master set
• Record exceptions, fix owners, and completion evidence

Deliverable: Marketing Rule Content Testing Log with findings and closures.

7) Archive what was actually disseminated (immutable)

Keep immutable archives of final disseminated communications, approval records, and the linked disclosure versions ³. This is how you survive an exam request that asks, “show me what clients saw.”

Deliverable: Advertising Archive with:

• Final file (PDF, screenshot, HTML export, email body)
• Distribution evidence (send list, posting date, campaign ID where available)
• Approval ticket and substantiation package
• Disclosure versions attached to that specific final artifact

Where Daydream fits (practical, not theoretical)

If your bottleneck is evidence management, Daydream can centralize ad approvals, tie each performance claim to substantiation, and auto-archive final versions with the exact disclosure language used. That reduces the “we approved a draft, but they posted a different version” problem that drives exam findings ¹.

Required evidence and artifacts to retain

Use this as an exam-ready checklist:

Artifact	What “good” looks like	Why it matters
Performance Advertising Inventory	All channels + owners + publishing paths	Proves you know your risk surface
Claim-by-claim substantiation	Each claim links to source data/calculation	Supports “not untrue” 1
Approval record	Pre-dissemination approval with conditions	Proves control operation 2
Final disseminated artifact	Immutable copy of what was sent/posted	Matches what investors saw
Disclosure version history	Disclosures tied to each final artifact	Avoids “misleading” by omission 1
Cross-channel testing log	Samples, findings, remediation evidence	Detects drift 2
Third-party oversight records	Instructions, content boundaries, approvals	Extends controls to outsourced marketing

Common exam/audit questions and hangups

Examiners tend to ask for concrete proof, fast, across multiple channels ². Prepare for:

• “Provide all advertisements with performance for the period requested, including website and social.”
• “Show substantiation for each performance claim in this pitch deck.”
• “Who approved this ad, and when, relative to dissemination?”
• “Show that the performance numbers in your RFP match the numbers on your website.”
• “How do you prevent outdated performance from staying live?”

Hangup pattern: teams can produce the deck, but not the calculation source or the exact final version that went out.

Frequent implementation mistakes (and how to avoid them)

1. Approving concepts instead of final artifacts
   Fix: approval must attach to the final PDF/screenshot/HTML export, not a draft.

2. No claim-by-claim substantiation
   Fix: force a claims table. If marketing can’t list the claims, compliance can’t review them.

3. Disclosure drift across channels
   Fix: maintain a disclosure library and lock approved snippets per channel.

4. Manual re-keying of returns
   Fix: performance numbers come from an official pack; marketing copies from a controlled source only.

5. Third parties publishing without your controls
   Fix: contract and process: no dissemination of performance statements without your approval workflow.

Enforcement context and risk implications (qualitative, no invented numbers)

The SEC treats false or misleading advertisements as fraudulent, deceptive, or manipulative conduct under the Advisers Act framework ¹. Even without citing specific cases here, the risk is straightforward: exam deficiency findings, required remediation, reputational harm, and potential enforcement referrals depending on facts and severity. The Division of Examinations has stated that Marketing Rule compliance remains an exam focus ². Plan as if performance advertising will be sampled.

30/60/90-day execution plan

Days 0–30: Stabilize and stop uncontrolled publishing

• Assign owners: Marketing, Performance Data Owner, Compliance Reviewer, Archiving Owner.
• Build the channel inventory and identify performance content already live.
• Put a temporary “publish gate” in place: no new performance content without compliance approval ¹.
• Stand up a basic archive (controlled folder + naming convention) while tooling is evaluated.

Days 31–60: Make review repeatable

• Implement the claim-by-claim substantiation template.
• Publish the first Performance Data Package and instruct marketing to source only from it.
• Release a disclosure library with required snippets by channel.
• Run a cross-channel sampling review and remediate the top inconsistencies ².

Days 61–90: Make it exam-ready

• Expand sampling to include RFPs, emails, and social.
• Formalize third-party controls for any external marketers (routing, approvals, archive obligations).
• Conduct a mock exam request: retrieve a complete substantiation package for a chosen ad in a short time window.
• If scale demands it, implement Daydream (or similar) to systematize approvals, substantiation linking, and immutable archiving across channels.

Frequently Asked Questions

Does the Marketing Rule “performance advertising requirement” only apply to public websites?

No. The prohibition applies to disseminating any advertisement that is untrue or otherwise false or misleading ¹. In practice, treat decks, RFP responses, emails, and social posts that contain performance claims as in-scope.

What is the minimum substantiation I should keep for a performance claim?

Keep the source performance report or system extract, the calculation support where applicable, and a claims table mapping each statement to its support. Tie the substantiation to the exact final version disseminated ¹.

Can I rely on marketing’s “standard slides” without reviewing each time?

You can standardize, but you still need evidence the final disseminated version was approved and not altered. A controlled slide library plus immutable archiving of the final deck reduces this risk ².

How do I handle performance statements posted by a third-party marketer or placement agent?

Treat them as an extension of your advertising process: require pre-dissemination approval, require use of your approved content, and require archiving of what they posted. Your obligation is to prevent dissemination of false or misleading advertisements ¹.

What’s the quickest way to find “drift” across channels?

Run a sampling sweep that compares a small set of high-visibility performance claims across the website, the latest deck, and current RFP boilerplate. Log differences, then force a single source of truth for performance tables and disclosures ².

What should I do if I discover a live performance page has outdated or inconsistent numbers?

Treat it as a potential misleading advertisement risk and correct it promptly, then document what changed, why, who approved the fix, and what version was live. Keep both the “before” and “after” artifacts in your archive ¹.

Related compliance topics

• 2025 SEC Marketing Rule Examination Focus Areas
• Arizona Investment Adviser Advertising Rules and Disclosure Requirements
• Best Execution: 2025 Standards (SEC Trend)
• Best Execution: Fiduciary Duty (SEC 206)
• Best Execution: Trade Allocation (SEC 206)

Footnotes

1. 17 CFR 275.206(4)-1

2. 2025 Exam Priorities

3. 17 CFR 275.206(4)-1; 2025 Exam Priorities