You may have caught my post on our corporate blog about the FTC Act of 1980 and the impact it will have on merchants. I understand that this is not a one sided issue at all. In fact, I see not only both sides of the coin, but many other sides. It’s a difficult situation, and there is not clear cut answers that are given. So this post is just for affiliates:
Will you be fined?
This one actually does have a clear answer, after the fact, anyhow. The answer is NO!
I am not sure where this $11,000 fine came from, but I do know, when I read through the entire FTC document, there was no mention of any fine. An interview that was done by Fast Company with the Assistant Director of the Division of Advertising Practice, Richard Cleland said the following:
That $11,000 fine is not true. Worst-case scenario, someone receives a warning, refuses to comply, followed by a serious product defect; we would institute a proceeding with a cease-and-desist order and mandate compliance with the law. To the extent that I have seen and heard, people are not objecting to the disclosure requirements but to the fear of penalty if they inadvertently make a mistake. That’s the thing I don’t think people need to be concerned about. There’s no monetary penalty, in terms of the first violation, even in the worst case.
He then went on to say that it wasn’t so much the blogger that they plan on going after, but the advertiser (or merchant in our aff marketing world). They want to emphasis merchants educating their bloggers, giving them all the information that they need, and self-monitoring.
Do I think the FTC will be going after blogs? Sure, but I imagine, it will be the large blogs at first with slaps on the wrist, or those that have received complaints. I cannot imagine that the FTC will be scouring the web to find every single blog and monitoring for compliancy, only to find the end of the web.
What About My Rights?
Another issue that seems to have come up in a few places is constitutionality. Yes, it is your first amendment right to say whatever you want to say, and yes the FTC is trying to regulate what you can say. You can choose to lie to your users, and make false claims all that you like, and either the merchant can potentially get in trouble for it, or they will end the relationship, therefore removing their liability.
How to Disclose?
The question still remains on how you should disclose. Where should you disclose, in the terms, privacy policy, after each post, within each post, after each link? Is microblogging included in this? This will likely unfold as the FTC is questioned more and more on this issue, but for you now, do what you think is right and make sure you have a sound argument to back it up, but do disclose your relationship/parternership/gain(beginning December 1st).
What Can I Do?
Affiliates, here is your checklist to make sure that you won’t have the FTC knocking on your door, and that merchants will continue their partnership with you.
- Read the FTC document. Try to understand as much of it as you can. If there are points that you are questioning, ask your merchant, manager, other affiliate marketers, or drop me a line. It is a rather long document, and difficult to get through.
- Decide how you are going to disclose, and make sure you stick to it. Whether you choose to disclose on each post, the T&Cs, the about me page, you might as well do it soon, before you are too wrapped up in fourth quarter. (Wow, what a bad time of the year to release this).
- Research your merchants from here on out. Make sure that any claims that you make are typical, and can be substantiated. IE, make sure the average person can get the same results you claim. If in doubt about a product, contact the merchant. Make the merchant/manager explain to you exactly what it is that the product does or doesn’t do, and what you can and can’t claim. Check the merchants Terms and Conditions for this information too.
We don’t know the long tail that this matter will have at this point, but we do know that this takes effective December 1st of this year, and it wouldn’t be so hot of a holiday present to have FTC agents hounding you about compliancy.
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