Affiliates Take Note: New FTC Disclosure Guidelines

by on March 14, 2013

FTC Disclosure for AffiliatesOn March 12, the Federal Trade Commission (FTC) updated its guidance for advertising disclosures in a guide called .com Disclosures: How to Make Effective Disclosures in Digital Advertising. The original guidance from 2000 left open many holes including advertising on mobile devices and places like Twitter and Facebook.

As affiliates, we have already been advised that disclosure must be “clear and conspicuous.” The new document goes even further. In fact, it specifically states that disclosure at the end of blogs posts is not acceptable. Here are some of the highlights from the guidelines:

  • Consumer protection laws such as the FTC’s prohibition on “unfair or deceptive acts or practices” apply to all media, including mobile devices.
  • Disclosures must be placed “as close as possible” to the claims.
  • If there is not room on the ad to disclose, it may be acceptable to make the disclosure on the page to which an ad links.
  • Scrolling should not be necessary to find the disclosure.
  • If it is too difficult on a particular platform to make disclosure clear and conspicuous, the platform should not be used for advertisements.
  • Advertisers should review their ads in the mindset of the “reasonable customer” and assume that customers do not read the entire page.
  • Pop-up disclosures should not be used.

How do these pertain to affiliate marketers?

The guidelines themselves are not particularly instructive, but the examples at the end of the guidelines are extremely helpful.

Example 14 in the guidelines is very similar to the types of recommendations that we do in blogs posts and across other media:Affiliate Disclosure FTCThis is very similar to the Twitter or Facebook posts that most of us in affiliate marketing make. The FTC states that this Tweet would need two different disclosures: one that JuliStarz was getting paid for the endorsement (which would include affiliates) and the second as to the actual health claims being made not being typical.

Here’s the rewrite suggested by the FTC:

FTC guidelines TwitterThe rewrite suggests placing “Ad” at the beginning of the Tweet. Further examples say that it is not enough to write in one place that you are being compensated and then not later refer to that compensation when you do the actual endorsement. The disclosure and the endorsement must be right next to each other. In addition, using “#spon” after the endorsement is not sufficient because consumers may not understand that “#spon” actually means “sponsored by an advertiser.”

Example 21 specifically speaks to bloggers. The blogger received the product for free to review it. She disclosed that fact at the end of the blog post. However, because there are links in the blog post that might take the reader away from the post before they make it to the end of the post, the disclosure at the bottom of the blog post is not “clear and conspicuous.”

Although the new Disclosure Guidelines do not specifically refer to affiliate marketers, it seems to me that there is no way that they could not apply to us. Between the guidelines and the examples, they refer to paid endorsements, Twitter, bloggers, and receiving free products in exchange for writing reviews.

Added: Here is more specific guidance previously from the FTC on the term “endorsement” where they do specifically implicate “affiliate marketing.” Important to note:

  • Would a button that says DISCLOSURE, LEGAL, or something like that be sufficient disclosure?” No. A button isn’t likely to be sufficient. How often do you click on those buttons when you visit someone else’s site? If you provide the information as part of your message, your audience is less likely to miss it.
  • “If it’s clear that what’s on your site is a paid advertisement, you don’t have to make additional disclosures. But what’s clear to you may not be clear to everyone visiting your site, and the FTC evaluates ads from the perspective of reasonable consumers.” (This would likely mean banner ads and maybe widgets?)
  • “an endorsement would be covered by the Guides if an advertiser – or someone working for an advertiser – pays a blogger or gives a blogger something of value to mention a product, including a commission on the sale of a product. Bloggers receiving free products or other perks with the understanding that they’ll promote the advertiser’s products in their blogs would be covered, as would bloggers who are part of network marketing programs where they sign up to receive free product samples in exchange for writing about them or working for network advertising agencies.”

Are you reading the new Guidelines the same way that I am? Will it change how you disclose your affiliate links and free products in product reviews?

Take a Look at Some Similar Posts:

Thanks for reading! I am a lawyer, blogger, affiliate marketer, and consultant most known in the industry for my cashback site, SunshineRewards.com. You can reach me on Twitter @sunshinetricia.
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Affiliates Take Note: New FTC Disclosure Guidelines, 4.8 out of 5 based on 5 ratings

{ 16 comments }

Joel April 16, 2013 at 5:43 pm

Thanks for posting this and keeping us up to date. I think it’s going a bit too far now. The end decision to purchase is down to the user, not the referrer of the user.

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Kevin April 5, 2013 at 1:56 am

No scrolling? Assume they don’t read the entire page? Oh, and this one: “If there is not room on the ad to disclose, it may be acceptable to make the disclosure on the page to which an ad links.”. It’s like they wanted to write “use common sense”, but knew that wouldn’t hold up, and so they halfassed this list together instead.

The whole thing seems kinda wishy washy and much of it feels like it’s trying to go against the very nature of what advertising is.

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Alex April 1, 2013 at 2:10 pm

More rules to follow…Agree with Andrew, I really don’t see why this is necessary. Just feels like they don’t like affiliates.

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M May 7, 2013 at 4:18 pm

I feel like if they are going to be so strict with our piddly advertising fees then they should crack down on the famous people who are tweeting and talking in magazines and on television about how great products are that they likely have never even tried. Yeah, it’s obvious they are being paid to say these things, but is it not obvious when I state I received this item free of charge right in my post?

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Fred March 29, 2013 at 5:26 pm

This should be interesting for people who are heavy into affiliate marketing.

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Andrew March 15, 2013 at 8:55 am

This would only affect blogs, though, right? What about if you just run a coupon or deal site? Every page is packed with dozens of affiliate links. It’s an ecommerce site. Do you still need to have a disclosure on top of every page?!?
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Tricia March 15, 2013 at 9:12 am

It does not apply if they are obvious advertisements. I think coupon and deal sites would fall into the obvious category. Except for any product reviews or videos there. Those might be included.

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Rae March 15, 2013 at 8:36 am

So, Tricia – I haven’t read the guidelines in depth… Right now, Sugarrae has a disclosure page linked in the footer… so I’m taking it these updates mean that’s no longer in compliance. Now, you have to scroll on EVERY page of my site to read the full post LOL… so, does that mean a disclosure link to my disclosure page in my top navigation bar (visible with no scroll on every page of my site with any kind of ad) keeps me in compliance?
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Tricia March 15, 2013 at 8:44 am

If all that you have is a link that says “Disclosure” or something like that at the top, it would not be sufficient. The disclosure on the page has to actually say that you received free product or you might make a commission on the product. I have a banner in my sidebar that is pretty obvious and links to my disclosure page and I don’t think that is going to be enough. To truly comply with the guidelines, we are going to have to either add actual disclosure language at the start of any post with affiliate links (or free product reviews) or mention the relationship before we link out.

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Rae March 15, 2013 at 8:53 am

I don’t have an issue with having a disclosure very obvious, I DO have an issue with f%$king up my site design with one. Also have an issue that it will be YEARS before they actually start enforcing this, so I’ll be in a very small percentage bothering with it yet making my site ugly with it.
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Tricia March 15, 2013 at 9:09 am

I agree. As usual, we will be among the minority in compliance.

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Loretta March 14, 2013 at 11:01 am

Oh wow, hadn’t even thought of the search engine effects of this whole thing yet. That’s a really interesting point to consider as well. Can you imagine someone looking for reviews of vacuum cleaners online and all the descriptions on page one saying “In accordance with FTC guidelines, blah blah blah…” LOL

I do absolutely agree that this will be an issue for affiliate marketing in general. Getting paid is getting paid, and it seems like that’s what they want you to disclose more than anything else.
Loretta has written about…Are You Worried or Confused About the Updated FTC Guidelines for Disclosures?My Profile

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Rae March 15, 2013 at 8:34 am

Typically, if your meta description states the keyword, then that is what will appear in the search results under your listing. Additionally, if it doesn’t or you don’t have a meta description, then the engines will typically try and find the words within the page and pull a snippet description from that section… i.e. as long as your disclaimer notice doesn’t mention keywords people are searching for, that should be an issue in reality.
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Rae March 15, 2013 at 9:29 am

Should *Not be an issue in reality.
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Andrew March 14, 2013 at 10:17 am

Tricia, were you paid for this write-up by the FTC? I didn’t see a disclosure anywhere. ;)

But seriously, I hate this. Honestly, as a consumer, I’m well aware that a lot of links are paid for. I don’t see why having them at the bottom are so bad. For that matter, if they’re that concerned and we need to place a disclaimer as close as possible to the link, then why do we even need a disclosure page at all?

I definitely disclose everything on my blog. Way more than I probably need to. But I generally put that info at the end of the post, clearly stated. Do I need to put it at the beginning now? That would seriously hurt me because the intro of your articles is what’s picked up by Facebook and G+. So now all my previews will end up being identical.
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Tricia March 14, 2013 at 10:29 am

I had not thought about what FB and G+ pick up. I wonder if some kind of author box at the top would help that shows up first for readers but not for the SERPs and other sites? Good question. It is definitely going to be ugly. It’s not too hard to work into product reviews where you get the product free because you can just say “I was testing this new X that Y sent to me…” but for affiliate links, that is much harder.

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