Try not to get sued while advertising online...
This article intended for general informational purposes only and do not constitute legal advice.
In your affiliate marketing effortsor , your ads must not be deceptive or misleading. Specifically, service limitations, additional purchase requirements, and material connections between endorsers and advertisers, must be prominently displayed.
The Federal Trade Commission (FTC) makes sure that your disclosures are clear using these four characteristics.
Prominence (disclosure large enough and readable)
Placement (disclosure positioned where it is likely to be seen)
Presentation (consumer likely to have a meaningful opportunity to review it prior to making a decision to purchase or submitting personal data)
Proximity (disclosure in sufficiently close proximity to the claim)
The FTC has a Policy Statement on Deception.
The FTC Act declares unfair or deceptive acts or practices unlawful. Section 12 specifically prohibits false ads likely to induce the purchase of food, drugs, devices or cosmetics.
You have to be careful when making any claims about your product or service. You must have objective evidence to back up any claim.
If you are going to make comparative claims about your competitors, make sure they are completely truthful and not deceptive. Plus, don't be surprised if that competitor files a lawsuit against you.
Puffery describes the use of subjective statements like, "this is great!" Subjective statements are placed under less scrutiny.
Endorsements and testimonials are subject to the same rules prohibiting deceptive and misleading practices.
Endorsers must disclose any material connection between the advertiser and the endorser like free products or payment. (ie #sponsoredad).
Sponsored content should be labeled as so.
In social media sponsored posts, you can use the hashtag #Ad or #Sponsored.
The recommendation is to use typical results consumers can expect. Gone are the days where disclaimers like "results may vary” or “results not typical" would be enough to absolve you of responsibility.
If a company collects personal information from California residents, under California law, the company must post a conspicuous privacy policy on its website.
The bottom line is not knowing you are breaking the law does not protect you. You don't know what you don't know until it is too late.
Consult a lawyer if you are unsure about the laws concerning ads, cold calling, celebrity endorsements, disclaimers, TOS, privacy policy, insurance protection, startup contracts, business entity setup, partnerships, etc.
Sources & Resources
Legal Toolkit for Digital Marketers
2016
By Slade Cutter
Opt-in for a Free Copy at
http://www.wittliffcutter.com/legal-toolkit-for-digital-marketers
Policy Statement on Deception
www.ftc.gov/system/files/documents/public_statements/410531/831014deceptionstmt.pdf
FTC guide to online advertising, .com Disclosures: How to Make Effective Disclosures in Digital Advertising
www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf
FTC Statement of Policy Regarding Comparative Advertising
www.ftc.gov/public-statements/1979/08/statement- policy-regarding-comparative-advertising
FTC Policy Statement Regarding Advertising Substantiation
www.ftc.gov/public-statements/1983/03/ftc-policy- statement-regarding-advertising-substantiation
Advertising and Marketing on the Internet: Rules of the Road
www.ftc.gov/tips-advice/business- center/guidance/advertising-marketing-internet-rules- road
FTC: Guides Concerning the Use of Endorsements and Testimonials in Advertising
www.ftc.gov/sites/default/files/attachments/press- releases/ftc-publishes-final-guides-governing- endorsements- testimonials/091005revisedendorsementguides.pdf
FTC’s Endorsement Guides: What People Are Asking
www.ftc.gov/system/files/documents/plain-language/pdf- 0205-endorsement-guides-faqs_0.pdf
Enforcement Policy Statement on Deceptively Formatted Advertisements, available at:
www.ftc.gov/system/files/documents/public_statements/ 896923/151222deceptiveenforcement.pdf
Native Advertising: A Guide for Businesses
www.ftc.gov/tips-advice/business- center/guidance/native-advertising-guide-businesses
Negative Options: A Report by the Staff of the FTC’s Enforcement Division
www.ftc.gov/sites/default/files/documents/reports/negati ve-options-federal-trade-commission-workshop- analyzing-negative-option-marketing-report- staff/p064202negativeoptionreport.pdf
CFPB Consumer Laws and Regulations - TILA
http://files.consumerfinance.gov/f/201306_cfpb_laws- and-regulations_tila-combined-june-2013.pdf
Are your ad claims on the MAP?
www.ftc.gov/news-events/blogs/business- blog/2012/11/are-your-ad-claims-map
CFPB Consumer Laws and Regulations - UDAAP
www.cfpaguide.com/portalresource/Exam%20Manual% 20v%202%20-%20UDAAP.pdf
Selling a Work-at-Home or Other Business Opportunity? Revised Rule May Apply to You, available at:
www.ftc.gov/system/files/documents/plain- language/bus79-selling-work-home-or-other-business- opportunity.pdf
Guide Concerning the Use of the Word “Free” and Similar Representations
www.ecfr.gov/cgi-bin/text- idx?SID=bef710a8efe4e964bebdbcce910ae408&mc=tru e&node=pt16.1.251&rgn=div5
CAN-SPAM Act: A Compliance Guide for Business
www.ftc.gov/tips-advice/business-center/guidance/can- spam-act-compliance-guide-business
Canada Anti- Spam Legislation (“CASL”).
See Fast Facts
http://fightspam.gc.ca/eic/site/030.nsf/eng/h_00039.html
Complying with the Telemarketing Sales Rule, available at:
www.ftc.gov/tips-advice/business- center/guidance/complying-telemarketing-sales-rule
Small Entity Compliance Guide, available at: https://apps.fcc.gov/edocs_public/attachmatch/DA-13-
1086A1.pdf
TCPA Omnibus Declaratory Ruling and Order
www.fcc.gov/document/tcpa-omnibus-declaratory-ruling- and-order
Complying with COPPA: Frequently Asked Questions
www.ftc.gov/tips-advice/business- center/guidance/complying-coppa-frequently-asked- questions
Mobile Privacy Disclosures: Building Trust
through Transparency
www.ftc.gov/sites/default/files/documents/reports/mobile -privacy-disclosures-building-trust-through- transparency-federal-trade-commission-staff- report/130201mobileprivacyreport.pdf
Privacy Online: Fair Information Practices in the Electronic Marketplace
www.ftc.gov/sites/default/files/documents/reports/privac y-online-fair-information-practices-electronic- marketplace-federal-trade-commission- report/privacy2000.pdf
Self-Regulatory Principles for Online Behavioral Advertising, available at: http://www.aboutads.info/obaprinciples
Application of Self-Regulatory Principles to the Mobile Environment
http://www.aboutads.info/DAA_Mobile_Guidance.pdf
Self-Regulatory Principles for Multi-Site Data
http://www.aboutads.info/msdprinciples
2015 Update to the NAI Code of Conduct
http://www.networkadvertising.org/sites/default/files/NAI _Code15encr.pdf
Best Practices for Messaging
http://www.mmaglobal.com/files/Best_Practices_for_Me ssaging_Version_7.0%5B1%5D.pdf
CTIA Short Code Monitoring Program Short Code Monitoring Handbook
http://www.wmcglobal.com/#!ctia-short-code-monitoring- handbook/brorz
