Q&A: What Happens if You Don’t Disclaim Affiliate Links?

A question for Reddit /u/palindrome03:

Question

Not exactly about patents and trademarks but in general how tough does the FTC come down on bloggers (the average joe blogger, not huge name ones) about where they disclose relationships with brands? Or how strict are those guidelines?I try disclose my relationship up front per the guidelines, or near the affiliate link, but about 90% of the blogs I read disclose the relationship way at the bottom of a post, which lets face it, looks cleaner.

Response

I haven’t really seen the FTC do much about affiliate notices. Even if the FTC doesn’t take action, though, most states have consumer protection laws. In Nevada, for example, doing sales in violation of state or federal law is defined as an act of consumer fraud.

There is a popular online personality based out of Nevada who is constantly announcing affiliate programs. This person doesn’t disclaim the affiliate relationship and makes some outrageous promises. I’ve seriously considered trying to find a disgruntled consumer and potentially asserting a class action. I’m sure this person doesn’t do the disclaimer because he doesn’t want it to decrease his sales. I think it would be a winnable case.

Ultimately, it’s just not what I do at the moment, but I would love to see it be done. Maybe I’ll take it on one day. I could enjoy taking down bad actors.

So I would err on the side of disclosing the affiliation.

Additional Comments

Don’t take this to mean that the FTC is not doing anything about failures to disclaim affiliate links appropriate. I am just not aware of any specific actions. I haven’t researched the FTC’s actual enforcement efforts at all.

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Leland Faux
Attorney Leland Faux blogs about trademark, copyright, and online business issues at Law of the Brand. You can submit a question by email to thelawofthebrand@gmail.com.

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