Regulators across the globe continue to focus on disclosures and marketing relating to environmental, social, and governance (ESG) issues. Consistent with this trend, on September 20, 2023, the U.S. Securities and Exchange Commission (SEC) adopted amendments to Rule 35d 1 (the “Names Rule”) under the Investment Company Act of 1940, as amended (the “1940 Act”). The amendments expanded the scope of the Names Rule to require any investment company registered under the 1940 Act (a “fund”) with a name that includes terms suggesting that it focuses on investments that have, or investments whose issuers have, particular characteristics, to adopt a policy to invest at least 80 percent of the value of its assets (an “80% policy”) in such investments.
According to the SEC, the amendments to the Names Rule are designed to address fund names that are likely to mislead investors about a fund’s investments and risks, including names that have a thematic investment focus (e.g., “growth” or “value”) and, most notably, names that indicate a fund’s investment decisions incorporate one or more ESG factors. As the SEC continues to focus enforcement efforts on ESG-related marketing, funds and their investment advisers should expect SEC scrutiny of any ESG-related terms used in a fund’s name following the compliance date of the Names Rule.
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