Advertisements by Investment Advisers

Section 130.848  Advertisements by Investment Advisers a)         It shall be a fraudulent business practice under Section 8 of the Act for any investment adviser registered or required to be registered under the Act, directly or indirectly, to publish, circulate, or distribute in any manner any advertisement: 1)         That refers, directly or indirectly, to any testimonial of any kind concerning the investment adviser or concerning any advice, analysis, report or other service rendered by such investment adviser; or 2)         That refers, directly or indirectly, to past specific recommendations of an investment adviser that were or would have been profitable to any person; provided, however, that this shall not prohibit an advertisement that sets out or offers to furnish a list of all recommendations made by such investment adviser within the immediately preceding period of not less than one year if the advertisement, and the list, if it is furnished separately: A)        state the name of each security recommended, the date and nature of each recommendation (e.g., whether to buy, sell or hold), the market price at that time, the price upon which the recommendation was to be acted, and the market price of each security as of the most recent practicable date; and B)        contain the following cautionary legend on the first page in print or type as large as the largest print or type used in the body or text: "It should not be assumed that recommendations made in the future will be profitable or will equal the performance of the securities in this list."; or 3)         That represents, directly or indirectly, that any graph, chart, formula or other device being offered can in and of itself be used to determine which securities to buy or sell, or when to buy or sell them; or that represents, directly or indirectly, that any graph, chart, formula or other device being offered will assist any person in making his or her own decisions as to which securities to buy or sell, or when to buy or sell them, without prominently disclosing in the advertisement the limitations and the difficulties with respect to its use; or 4)         That contains any statement to the effect that any report, analysis or other service will be furnished free or without charge, unless the report, analysis or other service actually is or will be furnished entirely free and without any condition or obligation, directly or indirectly; or 5)         That contains any untrue statement of a material fact, or that is otherwise false or misleading. b)         For the purposes of this Section, the term advertisement shall include any notice, circular, letter or other written communication addressed to more than one person, or any notice or other announcement in any publication or by radio or television, or any electronically available or distributed communication that offers: 1)         Any analysis, report, or publication concerning securities, or that is to be used in making any determination as to when to buy or sell any security, or which security to buy or sell; or 2)         Any graph, chart, formula, or other device to be used in making any determination as to when to buy or sell any security, or which security to buy or sell; or 3)         Any other investment advisory service with regard to securities.