Member Input Requested on Marketing Rule Questions for SEC Submission

As you no doubt are aware, the 18-month implementation period for the SEC’s Marketing Rule comes to a close on November 4, the Rule’s compliance date. The Rule is a significant and much-needed overhaul to decades-old guidance, much of which had become outdated and a poor fit to current practices and technology. It also introduces a principle-based approach to many areas of compliance, replacing the current Advertising Rule’s broadly drawn limitations – and leaving investment advisers to determine such things as what is “fair and balanced”, in their eyes as well as those of the SEC.

Although investment advisers who are in scope have had since the Rule’s adopting release in December 2020 to consider implementation, the reality is that a lot has occurred since to detract from that focus. As well, many in the industry assumed that such substantive changes would be accompanied by further guidance from the SEC, providing clarification on a few ambiguities or guiding on some of the new principles-based areas that were not accompanied by examples in the adopting release.  

To date, no further guidance has been provided, beyond two answered questions in the dedicated FAQ section of the SEC’s website. The SEC established an email inbox for the public to submit questions about the Rule, which it then could answer in the FAQ, but it largely has gone unused. As such, they have stated that they will not be issuing any further guidance and will let the industry implement the standards using the adopting release as their guide.

We recognize the reluctance many investment advisers may have in contacting the SEC directly, so AIMA is working to pose questions on behalf of its members without attribution, for publication in the FAQ. We ask that all investment adviser members forward any questions they may have on the Marketing Rule, as well as assumptions for the answer, to Suzan Rose ([email protected]), who is coordinating this effort. These questions and prospective answers will be anonymized and aggregated into a larger working document for members to review and discuss in a meeting on July 13 (invitation forthcoming), before submitting them to the SEC.

Thank you in advance for your time and consideration. Please let us know if you have any questions.