A free writing prospectus is a written offering communication that falls within the SEC’s defined framework outside the traditional statutory prospectus. “Free” does not mean unregulated or exempt from antifraud rules. Eligibility and conditions depend on the issuer and offering. [1]
Start with issuer and offering eligibility
Rules 164 and 433 contain conditions for using these communications in registered offerings. Issuer status, reporting history, ineligible-issuer rules, and the stage of the offering can change what is permitted. Do not assume an issuer may circulate any slide deck because a registration statement exists. [1] [2]
Check the communication itself
Review whether a required statutory prospectus must accompany or precede the communication, whether the prescribed legend is present, and whether the content conflicts with information in the registration statement or statutory prospectus. Filing and record-retention duties vary with who prepared or used the material and what it contains. [1]
Use a distribution checklist
Identify the issuer, offering, audience, distribution date, author, version, and filing responsibility before circulation. Preserve approved copies and distribution records. An electronic communication can be “written” for securities-law purposes; format alone does not avoid the rules.
For example, a marketing email and a final statutory prospectus require different compliance review even if they describe the same securities.
Assign responsibility before distribution
For each proposed communication, identify who prepared it, who will use it, whether the issuer adopts the content, and who must file or retain it. A presentation approved for one stage or audience should not automatically be reused for a later offering without review. A document can be an offering communication even if its designer called it an advertisement, email, or investor slide deck. The required legend does not cure false content or every eligibility defect. Similarly, filing a communication does not mean the SEC approved its accuracy. A practical control record should show the reviewed version, offering stage, applicable prospectus delivery, filing decision, and distribution date. This makes the compliance conclusion traceable to the actual use instead of a generic rule that all marketing is “free writing.” [1] [2]
See criminal securities penalties and broker-dealer registration obligations. An offering communication’s permissibility does not resolve every registration or antifraud issue.
Primary sources
- 17 CFR 230.433 – Conditions to Permissible Post-Filing Free Writing Prospectuses
- 17 CFR 230.164 – Post-Filing Free Writing Prospectuses in Connection With Certain Registered Offerings
Sources checked: October 31, 2026.