On December 19, 2011, the SEC's Division of Corporation Finance issued guidance on promotional and sales material submitted by registrants under Securities Act Industry Guide 5 (Guide 5). This guidance is meant to assist registrants with the SEC in preparing their sales and marketing materials in a manner consistent with federal securities laws.

The SEC approved Guide 5 for publication in 1976 to provide disclosure guidance for preparing registration statements relating to offers and sales of interests in real estate limited partnerships. In 1991, the Commission expanded Guide 5's approved uses, allowing it to be considered, where appropriate, in the preparation of registration statements for real estate investment trusts (REITs) and other limited partnership offerings. Guide 5 has since been most commonly used for continuous offerings of interests in REITs that do not have securities listed for trading on a national securities exchange, often known as non-traded REITs.

The guidance summarizes frequently issued comments raised by the Division of Corporate Finance in their reviews of sales and marketing materials submitted to the SEC according to Item 19 of Guide 5. Because Guide 5 is most commonly used by non-traded REITs, many of the comments in the guidance are specific to non-traded REITs.

This guidance does not cover all issues that may arise in an SEC review. Registrants should consider the rules and regulations under the Securities Act and their own facts and circumstances when preparing sales and marketing materials according to Item 19 of Guide 5.

For more information on REITs, see Practice Note, REITs: Overview.