Advertising Law Tool Kit - Ninth Edition | 2021

Venable / 17 16 / Venable Affiliate Marketing When using online affiliates to market your products or services, consider using some of these risk management best practices: • Know your affiliates and the affiliate networks to which they belong. • Set the terms upon which affiliates are permitted to earn commission for advertising your products and services. • Require legal compliance with consumer protection laws. • Establish your own written list of “advertiser-specific” marketing compliance requirements. • Contractually require affiliate networks to impose your terms on affiliates and sub-affiliates working under them. • Monitor the marketing activities of affiliates working for you, and be ready to suspend and terminate for noncompliance. • Notify legal counsel immediately upon receiving a subpoena, investigative demand, legal complaint, or other notice of court action. Ellen T. Berge etberge@Venable.com +1 202.344.4704 Ari N. Rothman anrothman@Venable.com +1 202.344.4220 Affiliate marketing offers cost-effective advertising with a broad reach. However, the failure of an affiliate to comply with marketing laws can cause big problems for marketers. Marketers whose affiliates use email messages that violate the CAN-SPAM Act; websites that make false claims about the marketer’s product; and blogs, advertorials, and product review sites that use deception to gain consumers’ interest have all been the subjects of government enforcement actions by the Federal Trade Commission (FTC) and state attorneys general, as well as private class actions. Meanwhile, affiliates are increasingly coming under the microscope in consumer protection investigations and criminal law enforcement actions, sometimes becoming the direct target of those actions. Venable works with advertisers, affiliates, and affiliate networks to set up contractual arrangements and monitoring programs to ensure that affiliate marketing remains a viable business initiative with manageable risk. We have helped advertisers develop a framework for watching over their affiliate programs, and have helped networks manage individual affiliates and publishers in their downlines. We also frequently respond to government investigations, and defend against court actions when needed. Roger A. Colaizzi rcolaizzi@Venable.com +1 202.344.8051