Adam T. Sutton

Affiliate ‘Flogging’ in Question

While we wait for the Federal Trade Commission to release its updated testimonials and endorsement guidelines, I’ve been talking to several experts to get a better idea of what the revisions might mean.

Last week, I spoke with Todd Harrison, Partner, Venable LLP, who focuses his practice on consumer protection agencies’ rules and regulations on drugs, foods, dietary supplements and other products.

Harrison went over situations where an advertiser might have to disclose more information, or remove certain claims, to be within the FTC’s proposed guidelines. Other practices might be explicitly prohibited altogether. One method in particular stood out to me: flogging.

‘Flogs,’ or fake blogs, are set up by companies or affiliates to look like independent websites, but in fact only promote a company’s products. There are variations on this theme with sites posing as product review sites and news sites. All the content — the articles, the comments, the ratings — is false.

“They’re not real testimonials, but they’re representing real testimonials,” Harrison says.  “The FTC is probably going to make it clear that you can’t have ‘flogs’…Even under existing law, those material connections are supposed to be disclosed.”

Harrison mentions that some companies may have affiliates that are flogging without the companies’ knowledge. They might be selling products through an affiliate network that attracts unscrupulous sellers and have no idea.

My suggestion is that marketers to take a look at their affiliates’ websites and tactics to make sure that they’re not deceptive or unsavory. If you use an affiliate network, contact its administrators. A simple checkup should help ensure that you’re providing your customers with an honest experience, and that you won’t attract any unnecessary attention from the FTC.

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Consumer Marketing, Marketing Law



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