The federal regulation on discriminatory advertising ends with this sentence:

"24 CFR part 109 provides information to assist persons to advertise dwellings in a nondiscriminatory manner and describes the matters the Department will review in evaluating compliance with the Fair Housing Act."

Part 109 was removed from the Code of Federal Regulations effective 1 May 1996. It has therefore been absent from the CFR for three decades.

And the modern replacement — HUD's 2024 guidance on applying the Act to advertising through digital platforms was withdrawn in September 2025.

The current rule has four short subsections. The former Part 109 it still references was removed from the CFR in 1996, and HUD's 2024 digital-platform guidance was withdrawn in 2025. Which makes reading those four subsections closely more important than the surviving cross-reference might suggest.

They are broader than the word "advertisements" suggests.

Four Things That Are Covered, And Only One Is An Advertisement

Before the regulation, four illustrations show what its language reaches. These are not HUD examples — they are drawn from the text below to show its scope.

• A listing:
  "Ideal for adults, no children." A statement about who the dwelling suits, capable of conveying a preference based on familial status.

• A phone call:
  A caller asks whether the building is suitable for a family of four and is told it is "really more of an adults' building." Nothing written, nothing published.

• An internal message:
  A regional manager emails site staff that a particular property "does better with mature residents, let's steer families to the other scheme." No member of the public ever sees it.

• An availability statement:
  A caller with children is told a unit has gone; another caller without children, calling later the same day, is shown it.

• Only the first of those looks like advertising:
  All four illustrate conduct covered by the regulatory provisions discussed below, and the last three are where a conventional advertising review can easily stop short.

The Rule Is Not About Advertisements

24 CFR 100.75 is titled "Discriminatory advertisements, statements and notices." The title itself gives away the broader scope: the rule covers advertisements, statements and notices.

Subsection (a) makes it unlawful to make, print or publish any notice, statement or advertisement with respect to the sale or rental of a dwelling which indicates any preference, limitation or discrimination because of race, colour, religion, sex, handicap, familial status or national origin, or an intention to make any such preference, limitation or discrimination.

Then subsection (b) defines the scope, and this is the part that surprises people:

"The prohibitions in this section shall apply to all written or oral notices or statements by a person engaged in the sale or rental of a dwelling."

Oral. A leasing agent on the telephone is within the regulation. So is a conversation at a viewing, a remark at a front desk, a voicemail.

The written category is equally broad. It expressly includes applications, flyers, brochures, deeds, signs, banners, posters, billboards or any documents used with respect to the sale or rental of a dwelling.

Your application form is covered by the advertising regulation. So is a sign in the window, a brochure in the lobby, and a letter to a prospective tenant.

Photographs And Symbols, Not Just Words

Subsection (c) sets out what discriminatory notices, statements and advertisements include, and the list is not limited to those examples.

The first is using words, phrases, photographs, illustrations, symbols or forms which convey that dwellings are available or not available to a particular group of persons because of a protected characteristic.

Photographs and illustrations are named in the regulation itself. Marketing imagery is not outside the rule because it contains no text. The relevant question is whether the imagery conveys that a dwelling is available or unavailable to a particular group because of a protected characteristic.

The same applies to symbols and to forms. A form designed in a way that conveys who the housing is for is within the language.

The Internal Email

The second item in subsection (c) is the one almost nobody accounts for.

It covers expressing to agents, brokers, employees, prospective sellers or renters or any other persons a preference for or limitation on any purchaser or renter because of a protected characteristic.

Read the list of recipients. Agents. Brokers. Employees.

A discriminatory preference expressed internally can fall within the regulation. The regional manager's email above is the illustration. So is an instruction to a leasing agent, a note in an internal system, or a message in a group chat about what kind of tenant a property is looking for.

This is an easy part of the process to overlook. Public-facing listings are visible; internal instructions and communications often receive less formal review.

The Adjacent Rule About Availability

One section further on, 24 CFR 100.80 makes it unlawful, because of a protected characteristic, to provide inaccurate or untrue information about the availability of dwellings for sale or rental.

Its first named example is indicating through words or conduct that a dwelling which is available for inspection, sale or rental has been sold or rented, because of a protected characteristic.

"It's already gone" is a statement about availability. Where that is said to one caller and not another because of a protected characteristic, the conduct is addressed by the regulation directly, and there is no advertisement involved at all.

What Happened To The Guidance

Worth knowing, because it explains why so much advertising advice in circulation is orphaned.

Part 109 was HUD's former Fair Housing Advertising framework, codified since 1972 and revised in 1989. It contained provisions addressing words, phrases, symbols and visual aids, selective advertising media, and Equal Housing Opportunity logos and slogans.

In 1996 HUD conducted a page-by-page review of its regulations. It concluded that some provisions were not regulatory requirements and did not require codification, and that nonbinding guidance and explanations would be more appropriately provided through handbooks and other materials. Part 109 was removed from the CFR effective 1 May 1996.

The cross-reference in §100.75(d) remains. The regulation still points to Part 109.

And the 2024 digital platforms guidance is also gone, withdrawn as part of the September 2025 FHEO withdrawals. That was the document addressing targeted advertising, audience selection tools and automated systems.

Two things worth separating here. The withdrawal changed the status of HUD's guidance. It did not repeal 42 U.S.C. §3604(c), §100.75 or §100.80. Digital advertising therefore remains subject to the applicable statutory and regulatory requirements, even though the withdrawn guidance is no longer current HUD guidance.

As for the word lists. Some commonly circulated advertising word lists trace back to former Part 109 material. They are not current codified authority and should not be presented as a current HUD regulation.

What To Do Instead Of Working From A Word List

Six things, and they follow from the regulation's actual scope.

1. Review oral practice, not just written copy. Subsection (b) covers oral statements. If your compliance effort ends at the listing, it stops short of where most statements are made.

2. Include the application form in the review. The regulation names applications specifically as written statements within its scope.

3. Look at imagery as well as text. Photographs, illustrations and symbols are in the regulation's own list, with the question being what the imagery conveys about availability.

4. Audit internal communications. Subsection (c)(2) covers statements to employees and agents. A preference expressed internally falls within the language even though no member of the public ever sees it. Where instructions travel between a regional office and site staff, that review is worth building into the process rather than running once. 

5. Check availability practice. §100.80 addresses inaccurate information about whether a dwelling is available. Consistency in what is said to whom is the control.

6. And check state and local law, which frequently protects characteristics the federal list does not — source of income, age, marital status, sexual orientation, gender identity, veteran status — and which was not affected by anything HUD withdrew.

The Sentence Worth Testing

Take any statement your organisation made this week about a vacancy — written or spoken, public or internal.

Would it convey to someone that the dwelling is available, or not available, to a particular group of people because of a protected characteristic?

The regulation does not limit the analysis to public advertisements. It expressly reaches written and oral statements, including statements made to employees and other persons, and it also covers an indication of an intention to make a prohibited preference, limitation or discrimination.

FAQ

1. Does the advertising rule cover spoken statements?
Yes. 24 CFR 100.75(b) applies the prohibitions to all written or oral notices or statements by a person engaged in the sale or rental of a dwelling.

2. Does it cover application forms?
The regulation names applications, flyers, brochures, deeds, signs, banners, posters, billboards and any documents used with respect to the sale or rental of a dwelling as written notices and statements.

3. Does it cover photographs?
Yes. Subsection (c)(1) refers to words, phrases, photographs, illustrations, symbols or forms conveying that dwellings are available or not available to a particular group because of a protected characteristic.

4. Does it cover statements made internally?
Subsection (c)(2) covers expressing to agents, brokers, employees, prospective sellers or renters or any other persons a preference for or limitation on any purchaser or renter because of a protected characteristic.

5. Is HUD's advertising word list still in force?
24 CFR part 109, HUD's former Fair Housing Advertising framework, was removed from the Code of Federal Regulations effective 1 May 1996. Some commonly circulated word lists trace back to that material and are not current codified authority.

Sources: 24 CFR 100.75, Discriminatory advertisements, statements and notices, including the intention provision at (a), the scope provision at (b), the examples at (c) and the cross-reference at (d); 24 CFR 100.80, Discriminatory representations on the availability of dwellings; 42 U.S.C. § 3604(c); and HUD's 1996 final rule streamlining its Fair Housing Act regulations, under which 24 CFR part 109 was removed from the Code of Federal Regulations effective 1 May 1996. The Fair Housing poster requirement is separately addressed at 24 CFR part 110. HUD's 2024 guidance on the application of the Fair Housing Act to advertising through digital platforms was withdrawn effective 17 September 2025; that withdrawal did not repeal the statute or the regulations cited here. The four illustrations at the start of this article are the author's own and are intended to show the scope of the regulatory language; they are not examples given by HUD and do not represent findings in any actual case. State and local fair housing law frequently protects additional characteristics and was unaffected. This article describes general concepts and is not legal advice. Confirm your position with counsel before setting advertising or marketing policy.