Session Description: This session un-muddies the murky waters of the FTC’s ever-changing focus, the proliferation of IP-related lawsuits, and the legal ambiguity regarding many forms of Internet-based marketing. The panel consisted of:

• Bennet Kelley, Founder, Internet Law Center
• Pete Wellborn, Managing Member, Wellborn, Wallace, & Woodard, LLC

I did like this session more than the FTC related session I attended at the last affiliate summit.  It was put together with the affiliate industry really in mind, though it captured my interest for being not entirely affiliate related.

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• Truth, proof, & fairness – everything we talk about today can be summed up with this.
• Misleading – common violations, disclaimers, & disclosures, demonstrations, refund policies, ads directed at children, environmental claims.
• Unfair ads – causes or is likely to cause injury that is:
  • substantial AND
  • not outweighed by other benefits AND
  • not reasonably avoidable
• Who is liable?
  • Seller (manufacturer or provider)
  • Ad Agencies
  • Site Designers
  • Affiliates
  • Individuals (personally involved)
    • “Negligence Standard” – knew or should have known that the ad included false or deceptive claims.
    • Exert as much control over people as you possibly can because you don’t want to find yourself peripherally liable.
• Other FTC Enforced Laws
  • Franchise & Business Opp Rule
  • MLM Pyramid Scheme Rules Laws
  • Truth in Lending Act
  • Fair Credit Billing Act
  • Fair Credit Reporting Act
  • Equal Credit
  • 900 #s
• Rules of Thumb
  • Truth
  • Consumer point-of-view
  • Proof
  • Careful: disclaimers/disclosures – rules have dramatically changed.
  • Careful: endorsement claims
• Testimonials & Endorsements
  • Celebrities
    • 1st – Accurate
    • 2nd – With Permission (”right of publicity”)
  • General Considerations
    • Honest opinion/belief of endorser
    • Same claim-standard as seller
    • Endorsers must continue in belief
    • Statements must be presented in context
  • Consumer Endorsements
    • You cannot get away with “results not typical” anymore.
    • Claims must be representative
    • Claims must be substantial
    • or Claims can be disclaimed (MAYBE)
    • Same claim-standard as seller
    • “Actual Consumer” must be just that
  • Expert Endorsements
    • Must be true
    • Must be a real expert in the correct field
  • Organization Endorsements
    • True collective judgment opinion
    • Must be true “expert” opinion
  • Material Connections
    • This is where the FTC is trying to go after the “mommy blogger” crowd
    • Connection between endorser and seller that might materially affect the weight or credibility of the endorsement must be fully disclosed (very gray area in terms of HOW)
    • Rule often applies where endorser is not celebrity or well-known expert
    • “Connection” may be money or publicity
      • Applies to blogs & flogs (fake blogs)
      • Walmarting Across America was a fake blog made by Walmart to generate publicity.
      • Absolutely forbidden by the rules of the FTC
      • They don’t want to have a chilling effect on guerilla or creative marketing campaigns, but at some point it has to be disclosed that it’s marketing or advertising.
• “Free” Stuff
  • “Free” means free
  • “Regular price” means same price, on the same quality, quantity, and service level at which the seller has sold the product in that geographic market or trade area for a reasonable substantial period of time
  • Ad must be clean

Points brought up during the Q&A

• In the context of an agency, how can you transfer liability of claims to the client?
  • Have a bullet proof contract
  • Make sure your agreement has a provision that you’ll periodically monitor any celebrity or expert endorsements to ensure accuracy

They read through the presentation rather fast so my notes are probably incomplete.  Luckily, the presentation was made available!  I had to leave during the Q&A portion to get back to the booth, so I probably missed some good stuff caught on video, so I’ll add that here in the next few weeks.  Here’s the presentation:

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Right about now I’m on the road driving from the SF Bay Area to Eugene, Oregon to visit my in-laws.  Next week is my vacation, full of cold & rain while doing the yearly holiday visit with the extended family.  This week has been great with all the last minute holiday preparations.  I had a great Christmas, and I hope everyone out there had a terrific holiday.

Most people who didn’t take any extra vacation days are probably back to work today, so check out what you might have missed while making your last minute treks to Walmart for more bows and stocking stuffers.

• It’s not just awards season for the movies; ShareASale Performance Awards were announced on Monday.  Congrats go out to Scott Jangro, CSN Stores, Nicole Beidler, Checks Unlimited, GreenPlanetSearch, Missy Ward, and Melanie Seery for taking home top honors.
• The acclaimed BlueShirtNation, BestBuy’s internal employee social network, is radically changing according to co-founder Steve Bendt.  I’m interested to see where they take it.
• The Performance Marketing Alliance has finally settled on a Mission Statement.
• AffiliateTrust.org has been mentioned this week on Scott Jangro’s blog and the Affiliate Thing podcast.  From what I can discern from reading their About Us page, they’ve basically formed to help combat black hat or shady affiliate practices.  Which is definitely a good thing.  Take some time (as will I) to educate yourself by reading more.
• Are you making resolutions this year?  Missy Ward isn’t.  More power to her!

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Recently I’ve been seeing a lot of packages promising affiliate marketing to newbies in a nice, neat package.  Some are shady but others are fairly legit.  A decent one I’ve heard some good things about is this Ultimate Affiliate Package.

Basically with this package will give you a jump start into affiliate marketing.  Considering the amount of money you can make with this, the fee to participate isn’t bad ($97).  One of the hardest parts of affiliate marketing is doing the grunt tech work, so this takes that out of the equation so almost anyone who has the desire to work from home can do it.

The brands the package works with are well know and reputable, so it shouldn’t be very hard for a relative novice to jump right in and become acquainted with the ins & outs of affiliate marketing.  When you buy the package you receive easy website building software, access to a support site, weekly lessons, and two eBooks: Affiliate Marketing 101 and Blogging for Money.

The program works with Walmart, BestBuy, and Amazon, to name a few.  From the general looks of it, it looks to me to be something a super affiliate has set up to help others get into the game.  With the guarantee offered, it’s worth a shot for the novice interested in affiliate marketing as a way to make a few extra bucks.

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