Is Your Marketing Legally Compliant?

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As an affiliate or other marketer, you are probably aware that your marketing campaigns, emails, etc, must comply with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or the CAN-SPAM Act, which governs how commercial messages can be delivered to subscribers, especially via email.

However, the CAN-SPAM Act is just the tip of the iceberg when it comes to the laws that govern marketer behavior and solicitations. Here are a few other marketing laws that you should be aware of:

Advertising substantiation

In 1983, the Federal Trade Commission (FTC) published its policy on advertising substantiation, which mandated that any advertising claims had to be proven by studies, customer testimony, expert opinion, etc. This was termed the FTC Act. Likewise, disclaimers had to be readable and visible in their entirety. Finally, shipping/handling and all charges extraneous to the product purchase price had to be disclosed.

For example, if you were advertising your face cream and claiming that it reduces wrinkles, you’d be under FTC mandate to coordinate tests regarding this product’s actual ability to reduce wrinkles. You would not be allowed to simply post claims lke “Studies show that…” or “4 out 5 dermatologists recommend,” without providing proof.

Noncompliance with advertising substantiation is considered a serious offense; for example, the FTC recently fined Allstar Marketing Group, LLC, $7.5 million for misleading consumers about shipping charges.

COPPA

In 1998, the Children’s Online Privacy & Protection Act (COPPA) was passed, with its goal being increased parental control over what and how much information was released about children. If you decide to collect testimonials or other information from minors, be aware that you need to follow these rules:

  • You need to post a concise privacy policy detailing what personal information you’ll be collecting from children.
  • You need to notify parents/guardians and obtain their consent prior to obtaining personal information from children.
  • You must be prepared to provide your collected information to parents/guardians regarding their children, and you must not disclose the information to any third parties (unless they are involved in the study).
  • You must provide parents/guardians with the option of stopping you from obtaining further information, even if you’d previously been allowed to collect it.

The TCPA

As an affiliate marketer, you may never end up calling your customers; however, if you do, be aware that the FTC has strict rules governing those sales calls in the form of the Telemarking and Consumer Fraud and Abuse Prevention Act (TCPA), which was passed in 1991. The TCPA is also often referred to as the Telephone Consumer Protection Act.

As a defined telemarketer, you can and cannot take specific actions that are construed as abusive and/or fraudulent, including the following:

  • Calling consumers before 8 a.m. or after 9 p.m. local time.
  • Not maintaining a do not call list and honoring consumer requests to be placed on such a list.
  • Not checking if consumers have already added their information to the national Do Not Call Registry maintained by the FTC- and not complying with their wish to not be called.
  • Not disclosing the nature of the call, who referred you to the consumer, and also not providing your own name and contact information to the consumer.
  • Leaving recorded sales solicitations at consumers’ residences.

Violations of the TCPA can be as high as $1,500 per occurrence. Last year, Capital One and its associates settled a $75 million class action suit involving unsolicited cell phone calls to consumers. These calls actually fell in a gray area because they were informational in nature and did not solicit for any product or service.

Product/Service endorsement

Product reviews and endorsements are a big part of what you, as an affiliate or other marketer, might do on a daily basis in order to spark interest in your affiliate products. Even if all you are do is post a tweet about a $10 item, you are using a public medium to advertise your product. As a result, you need to be aware that there are very tight FTC regulations regarding brand messaging- even through social media.

As a blogger, you must disclose if a product’s manufacturer is compensating you for your review. If you are reviewing your own products, you must disclose that you are professionally affiliated with those products. This was clearly evidenced by the 2012 Spokeo case; the search service paid $800,000 in FTC fines for asking its employees to post positive reviews without checking that they had first disclosed their professional association with the company.

If you ask your customers to post their own reviews of your or another manufacturer’s products, you must make your customers aware of how to legally post endorsements. Even if your customers inadvertently break the law or fail to disclose their compensation or material association, the liability is still yours to carry. Therefore, you should closely monitor all customer-generated content.

The Bottom Line

If you feel a bit overwhelmed by all these FTC rules, you’re not alone. This is why the FTC provides tutorials, classes and even workshops about its various regulations. Much of this information can be obtained online, via the FTC website.

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