In May of 2015, the Federal Trade Commission released new guidelines that directly affect most affiliate marketers. The last time the FTC published guidelines related to affiliate marketing was in March of 2013 when the FTC released its updated “.com Disclosures”.

In May 2015, the FTC updated its “Endorsement Guides,” covering issues such as disclosures in close proximity to affiliate links, buying “Likes” and incentivizing Tweets, and required disclosures in consumer reviews.

Disclosure of Potential Commissions Near Affiliate Links

Many affiliate marketers create content around to products that would appear on blogs or consumer reviews sites, with affiliate links to retailers embedded into the content. The new version of the FTC’s Endorsement Guides clarifies that affiliate marketers must disclose their relationship with the retailer in a “clear and conspicuous” manner, so that consumers can decide how much weight to give the product review or endorsement.

Reviews can be multiple paragraphs long, containing multiple affiliate links, so the FTC has clarified that in many situations, the affiliate marketer need only disclose the relationship once. As an example, the FTC suggests language such as, “I get commissions for purchases made through links in this post.” However, if the affiliate link is separate from the review on the page, the FTC recommends multiple disclosures.

The disclosure should generally be close to the actual recommendation in the review, so putting disclosures in linked terms of use or within the page footer are not adequate. Also, the disclosure should generally be above the affiliate link, in the event that a consumer does not scroll down past the affiliate link.

The FTC also clarified that merely using the words “affiliate link” in the link text will not be an adequate disclosure, nor will the use of the words “buy now” in the link text.

Buying Likes and Incentivizing Tweets

The FTC now states explicitly that if marketers buy Facebook “likes,” marketers could face an FTC enforcement action. If the “likes” are from non-existent people, or from people who have no experience with the product, it is now clear that buying likes violates the FTC guidelines.

If a marketer runs a promotion where consumers are compensated in some matter for publishing Tweets, then the advertiser must require that the consumer disclose the promotional nature of the Tweets. The FTC provides some examples of ways to make disclosures on Twitter, like using the words, “Sponsored, “Promotion,” or “Ad:”.

No Astroturfing

While many have viewed FTC guidelines to prohibit so-called “astroturfing” (i.e. masking the sponsor of a message to make it appear as though it originates from grassroots participants), the new FTC guides reiterate that affiliate marketers, or employees of retailers, may not create consumers reviews without disclosing their connection to the retailer.

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Karl Kronenberger

Attorney Karl Kronenberger, of Kronenberger Rosenfeld, LLP, represents businesses in the performance marketing industry.

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