A Checklist for Advisers to Ensure Compliance With the Advertising Rule

Rule 206(4)‑1 under the Investment Advisers Act of 1940 governs advertising by investment advisers (Advertising Rule). Although the Advertising Rule is fairly short, compliance with it has vexed advisers since it was first enacted in 1961, and those compliance challenges have only increased as the rule has fallen behind developments in technology and methods of communicating with investors and potential investors. The SEC has recently proposed amendments to the Advertising Rule in an effort to modernize it and aggregate guidance from no‑action letters and enforcement actions. Until the SEC releases final amendments and those changes take effect, advisers must nonetheless continue to comply with the Advertising Rule in its current form. This article discusses why the current Advertising Rule poses compliance challenges for advisers; provides a checklist developed by a compliance consultant with more than 20 years of experience; and explains how advisers can use this checklist when preparing and reviewing advertisements, as well as training staff on compliance with the Advertising Rule. See our three-part advertising compliance series: “Ten Best Practices for a Fund Manager to Streamline Its Compliance Review” (Sep. 14, 2017); “Five High-Risk Areas for a Fund Manager to Focus on When Reviewing Marketing Materials” (Sep. 21, 2017); and “Six Methods for a Fund Manager to Test Its Advertising Review Procedures” (Sep. 28, 2017).

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