Testing the waters materials: what to keep and what gets filed
Reg CF and Reg A testing the waters materials can become public filings. Here is what to archive, what counsel files and how to avoid gaps.
By Bryce W Jones8 min read
Testing the waters materials do not disappear when the campaign ends. Under Reg CF, written communications and broadcast scripts used before the Form C is filed belong in the filing. Under Reg A, solicitation materials are exhibits to the Form 1-A. The practical way to handle both is to keep the campaign as if counsel will ask for every version tomorrow, because eventually counsel will.
That sounds like paperwork until a team has run forty ad variations, changed the landing page six times and sent a dozen emails. At filing time, a screenshot of today's page is not a record of what prospective investors saw three weeks ago.
Read this first. We are marketers, not lawyers. Filing obligations depend on the exemption and the material. Have securities counsel decide what must be filed and review the full archive before the offering statement goes in. A missing or inaccurate version is a legal question, not an invitation to recreate a cleaner history.
What does Form C require?
Reg CF Rule 201(z) requires an issuer to file any written communication or broadcast script provided under Rule 206. It also reaches material used under generic Rule 241 when that use was within thirty days of the initial Form C filing. The SEC staff's Regulation Crowdfunding interpretation confirms the Rule 206 filing point.
The wording matters. The rule names written communications and broadcast scripts. It does not say that every unscripted oral conversation must be transcribed and filed. Still, notes, approved talking points and event recordings are useful records when counsel asks what was said. Keep them in the internal archive and let counsel decide their filing treatment.
Form C goes to the SEC through EDGAR and is available to investors. Rule 201 requires the issuer to provide the filed information to the intermediary as well. This is why a marketer should assume the campaign's claims will sit beside the issuer's formal disclosures. A valuation claim in an early ad and a different number in the Form C invite a question. A claim about a contract, customer count or expected launch date can be compared the same way.
What does Form 1-A require?
Reg A's Form 1-A, Part III, Item 17 calls for testing the waters material in exhibit 13. The SEC's Regulation A guidance explains that solicitation material is among the exhibits filed with the offering statement. A company may solicit interest before and after public filing, up to qualification, under Rule 255. Material used after filing may need to be added by amendment when it is new or substantively changed.
“Every version” is a good archive rule, but it is too broad as a filing rule. In SEC staff interpretation 182.29, updated in February 2026, the staff says an issuer need not file each instance of material that is substantively the same as material already filed. Counsel decides whether a change is substantive. Keep all versions so that judgment can be made from the real record.
After a Form 1-A is publicly filed, Rule 255 adds a requirement to tell people how to get the latest preliminary offering circular, or include it. If a material used after filing becomes materially inaccurate or inadequate, the rule can require redistribution of revised material in a substantially similar manner. That is another reason to know exactly where each version ran and who received it.
Tier 1 Reg A offerings also face state registration or qualification where securities are sold. The state review may make the archive useful beyond the SEC filing. The exact state process is a counsel question.
What counts as a material?
Start with the communication a prospective investor actually received, not the design file before export. The legal filing rule differs by exemption, but the internal archive should include the whole asset and its context.
| Medium | What to save |
|---|---|
| Landing page | The rendered page at each meaningful revision, including form, legends, mobile view and confirmation state. |
| Paid ad | Creative, primary text, headline, destination, disclosures, placement and run dates for each version. |
| Email or text | The exact message sent, subject line, recipient segment, send date and destination links. |
| Social post or reply | Full post or reply with attached media, visible text, date and account. |
| Video or audio | Final media file, captions, transcript or script, and the version used in each placement. |
| Deck or live presentation | Slides shown, speaker script or approved notes, event date and any recording available. |
| Third-party promotion | The actual post, ad or message distributed on the issuer's behalf, with who sent it and when. |
For Reg CF, the line between a video and a broadcast script deserves counsel's attention. Rule 201(z) expressly names broadcast scripts; an actual video may also be the clearest record of what aired. Save both. For oral pitches, preserving notes and recordings is our conservative record practice, not a claim that the rule requires filing every spontaneous word. For Reg A, the exhibit instructions and SEC staff interpretation determine what goes in the Form 1-A. The archive should be broader than the minimum exhibit list.
An agency, creator or promoter acting for the issuer does not make the communication irrelevant. Reg A Rule 255 expressly reaches a person authorized to act on the issuer's behalf, and Reg CF's advertising rule treats persons acting on behalf of the issuer as the issuer for its purposes. Get copies of outside posts while they are live. Do not wait for a contractor to remember where they were placed.
Why can't the ad account be the archive?
Platforms rename campaigns, crop placements and retire formats. A page builder overwrites yesterday's page when today's version is published. Email systems often retain the send but not the surrounding landing page or the exact disclosures a clicker saw. None of those systems is a complete, permanent record of the public communication.
Export the asset when it goes live and again when it changes. Keep a capture of the actual rendering. If the legend appears in an expanded caption, capture that state. If the ad platform cut the primary text before the required words, keep the rendered ad and tell counsel. A cropped screenshot of the image alone proves little about the complete communication.
This also catches ordinary mistakes. A two-day ad run with an old price or a missing legend cannot be fixed by archiving only the corrected version. Save the bad version and the dates it ran, stop it, and give counsel the facts. The filing decision belongs to counsel, and the correction plan may require more than swapping creative.
The archive to build from day one
A simple dated folder and an index are enough. For each asset, record:
- A unique name and version number.
- The exemption it was written for and the offering stage when it ran.
- Channel, account and placement.
- First and last run dates, with the relevant time zone.
- Final copy, media and destination URL.
- A complete screenshot or export showing the legend as displayed.
- The reviewer and approval date.
- What changed from the prior version.
- The audience or segment, when that affects what people received.
- Performance data tied to that exact version, if available.
This archive has a marketing payoff too. It tells the issuer which message generated each indication of interest and which version should be considered for the live launch. But do not mistake indicated amounts for invested dollars. The filing record and the performance record can share an index while measuring different things.
Before the Form C or Form 1-A is filed, give counsel a complete export and an index. Have the team compare the archive against ad account history, email sends, page revisions, social calendars and outside promoters' reports. The purpose is to find omissions while the people who ran the campaign can still explain them.
What if you did not keep everything?
Reconstruct what can be verified. Export platform histories and emails, recover page versions, ask contractors for originals, and record the gaps. Mark a reconstructed asset as reconstructed. Do not rewrite an ad to make it look like the version that ran. Do not invent dates.
Then tell counsel what is missing. They can decide whether the remaining record is sufficient, whether additional disclosure or correction is needed, and how to file. A campaign archive is most useful when it is honest about its holes.
The filing requirement is easy to underestimate because it appears in a short rule. In practice, it governs the whole pre-launch workflow. The team that can show what every prospective investor saw will have a cleaner filing, a clearer answer to inconsistencies and better data for launch. The transition from interest to a live offering is covered in testing-the-waters-vs-live-offering.
This is general information, not legal advice. Have securities counsel review the materials, filing exhibits and any gaps before submitting an offering statement.
FAQ
Do testing the waters materials have to be filed with the SEC?
Yes, under the relevant filing rules. Reg CF Form C includes written Rule 206 communications and broadcast scripts, plus qualifying Rule 241 material used within thirty days of the initial filing. Reg A Form 1-A includes testing the waters material as exhibit 13. Counsel determines the exact filing set.
What counts as testing the waters materials?
The communications used to solicit interest: pages, ads, emails, social posts, scripts, media and presentations. The legal filing requirement is more precise than this broad archive list, so preserve the full set and let counsel classify each item.
Are testing the waters materials public?
Filed materials are part of the offering statement available through the SEC's EDGAR system. A private archive may hold more versions and supporting records than the filing requires.
Does the funding portal review testing the waters materials?
Reg CF issuers provide the required Form C information to the intermediary, and a portal may ask for pre-filing materials during onboarding. Its review process varies. Portal review does not replace the issuer's or counsel's responsibility for the statements.
Do you have to file every version of a testing the waters ad?
Keep every version. Filing treatment differs. The SEC staff says substantively identical Reg A instances need not all be filed. For Reg CF, Rule 201(z) calls for written Rule 206 communications or broadcast scripts. Counsel should decide which variants are distinct and what to submit.
What if you did not keep your testing the waters materials?
Recover what can be verified from the ad account, email system, site history and third parties. Document missing pieces honestly and tell counsel before filing. Do not recreate a clean version and present it as the one that ran.
Where are Reg A testing the waters materials filed?
They are filed with the Form 1-A as exhibit 13 under Part III, Item 17. New or substantively changed materials used after filing may require an amendment. Counsel should determine what to add and when.