Posted by Jennie Scholick in FTC Compliance
18 Feb 2015
Sometimes the stars align and topics you’re already thinking about suddenly become major news items. Last week’s news cycle was was all about affiliate marketing, starting with a Wall Street Journal article about how style bloggers monetize their blogs, Pinterest, Twitter, and Instagram accounts, and culminating in Pinterest’s announcement that it would be banning affiliate links from its site.
Today, I want to talk briefly about that first article in the Wall Street Journal, written by Elizabeth Holmes, entitled “How Style Bloggers Earn Sales Commissions, One Click at a Time: Blog Links That Redirect Readers to Retail Sites Are Expanding to Twitter, Pinterest and Instagram.” This article raised a few red flags for us at BrandVerity, especially as we’ve been spending a lot of time thinking about FTC regulations over the past weeks.
A few lines in particular stood out as we read through this article:
“The money comes from the dozen or so links Ms. Tanita places at the bottom of each post that whisk readers to retail sites selling the products she is wearing…Every time a reader clicks and buys from a linked retailer, for the next month Ms. Tanita will get a cut of the sale, whether it’s an item featured on the blog or any product the retailer sells. And the typical reader is none the wiser.”
“Commission-generating links are the nuts and bolts of “affiliate marketing,” a mechanism that is one of the most common, least visible ways the Internet funnels blog readers onto retail sites.”
“Julia Engel, a 24-year-old San Francisco resident with a style blog called Gal Meets Glam, says she thinks her readers understand how affiliate marketing works and don’t mind. “People are always going to ask me where something is from, and I’m always going to answer,” says Ms. Engel. “So if I can be credited for that purchase, it’s a win-win situation.”
“Links are subtler than in-your-face display ads, and they are far simpler than the elaborate partnerships some brands have brokered with bloggers in exchange for sponsored posts, personal appearances and social-media mentions.”
“They aren’t thinking about whether a blogger makes a commission like some store salespeople.”
As Tricia Meyer made clear in a ReveNews post a couple years ago, the FTC does consider it necessary for affiliates to clearly disclose their merchant relationships to readers. The fact that this Wall Street Journal article makes no mention of disclosures should raise a few eyebrows amongst merchants and OPMs. In most cases, it’s not the bloggers who are going to feel the effect of FTC violations, it’s the merchants, so they should be very wary of the views expressed in this article. As Tricia said in her post:
“The guidelines make it clear that the “old way” of putting a basic disclaimer somewhere on your site or even at the bottom of blog posts no longer counts. If you put an affiliate link on Facebook or Twitter, you must disclose that it is an advertisement BEFORE the link. How many people do you see actually doing that?”
Last week, the Wall Street Journal replied, “none.”
With 2015 now well underway (can you believe it’s February?!) and Affiliate Summit West behind us (though we’re already looking forward to our next chance to meet up with our customers in person!), BrandVerity’s team is looking towards what’s next for this blog space. Last year we did several exciting things, including deeper dives into how major events like Valentine’s Day, Black Friday, and the NFL Season impact paid search, how best to navigate the delicate balance of Reseller trademark bidding, and how to work with Lead Generation Publishers in a smart and thoughtful manner. This year we want to do even more.
To begin, we want to start off with a topic that we think lots of people worry about but very few know how to fully address: FTC compliance. Over the next few months we’re going to talk to people in the know both at BrandVerity and around the industry about what FTC compliance really means, what it looks like in a variety of industries, and how to interpret various FTC decisions and rulings from the past several years. We hope this blog series will serve as a resource for ongoing discussions about the (often opaque) FTC rules and regulations that all retailers, partners, and affiliates need to know about.
To start, we’re going to throw it back (even though it’s only Monday), to a presentation that our own Mason Smith gave at Performance Marketing Summit last summer. He’d be sure to want us to mention Rachel Hirsch of Ifrah Law who helped him put this presentation together. We think this presentation gives a nice overview of the issues at hand when it come to affiliate FTC compliance and is a great launching point for this series.
As we begin this process, we’d love to hear from you. What are some of the best resources regarding FTC compliance? Who do you think are the most well-versed experts in the field? What questions do you have regarding FTC regulations? Let us know in the comments below, on Twitter, or contact us directly!
Posted by Jennie Scholick in affiliate marketing
27 Jan 2015
Affiliate Summit West 2015 was, by all accounts, a great event. The office has been buzzing for the last week as the ten (!) people who were at the conference have shared stories, contacts, and favorite moments.
I wanted to continue that discussion online by letting some of the BrandVerity team who were there tell you about a few of their highlights (both professional and less professional) at Affiliate Summit West.
Bill Rothbard’s speed-talk on what to expect from the FTC. There’s certainly more than meets the eye when it comes to standards and regulation. I also enjoyed the opportunity to meet Tricia Meyer for the first time, just before the panel I was speaking on. While I would have liked a bit more time to actually speak to her one on one (it was just a brief “good luck” right before we started), it was great to finally meet her.
I really enjoyed going to some of the smaller happy hours organized by networks. I was able to speak with compliance folks from several issuers, networks, and large affiliates. They were great opportunities to share best practices, talk regulation, and introduce our technology.
I loved talking to people that had never heard of us before, and when you tell them what we do, their response is “that is exactly what I need!”
I was impressed by the growing demand for Content Monitoring. In multiple conversations I was speaking to people outside of the typical regulated industries (Finance, eCigarettes, Health, etc.) and found that advertisershad a lot of interest in making sure their offers were kept up to date and accurate on affiliates’ sites. It’s great to see advertisers emphasizing the importance of brand.
My best professional moment was hearing all of the positive things customers had to say about the way we’re helping them and making their lives easier. I was also especially excited to meet our customers who had traveled long distances to be there!
Georgia and I being “those people” at the craps table, drawing people to our table to play because of the energy and good vibes—accomplished with loud chants, and renditions of 90’s Disney classic songs. A few of the people who came up to the table due to our ridiculousness were fellow ASW attendees!
I found meeting clients really rewarding. Everyone was very happy with our software, and it was fun to hear that from users outside of the sales process.
The Seahawks victory was certainly a highlight.
I feel like being Seahawks fans also became a natural conversation starter!
Georgia throwing $10 at the roulette table, betting on her mom’s birthday and immediately winning. Followed up by me doing the exact same thing 5 minutes later. Thanks mom!
Brendan Lash, Olivia Hull, and Julia De Friel at the “Meet Market.” PC: Affiliate Summit
We’d also like to send out our hearty congratulations to the winners of this year’s Affiliate Summit West Pinnacle Awards: Tricia Meyer, Joe Sousa, Wayfair.com, Brian Littleton, Acceleration Partners, and FMTC, which won Tool/Service of the Year.
What were your favorite moments at Affiliate Summit West? Were you at any of the same events as the BrandVerity team? Did you meet any BV’ers while you were there? Let us know in the comments or contact us at BrandVerity!
20 Jan 2015
My intrepid partner in [educating the world about trademark] crime, Sam Engel, presented at Affiliate Summit West yesterday morning on a panel called “Affiliate Legal Issues: Three Immediate Action Items.” Sharing the stage with him were Gary Kibel, a partner at Davis & Gilbert, LLP, and Gerri-Lyn Becker, President of The California Wine Club. The panel was moderated by Carolyn Kmet, CMO at All Inclusive Marketing.
Sam Engel (middle) with Panelists. PC: Affiliate Summit
While we wait to get the full update from Sam on how the panel went and everything else that happened at ASW (there were a ton of BrandVerity folks there this year!), I wanted to share Sam’s presentation. For frequent readers of our blog, there probably isn’t a ton of new info here, but it’s all presented in lovely, digestible slides.
A few major takeaways:
Take a look at Sam’s presentation below and please reach out with any questions or comments. Also, if you were at ASW, we’d love to hear any feedback. We’ll be posting a wrap-up post next week, but in the meantime, let us know about your experience! Comment below or contact us at BrandVerity!
Posted by Jennie Scholick in Uncategorized
17 Dec 2014
The National Institute on Drug Abuse released a survey yesterday revealing that teenagers now use e-cigarettes at substantially higher rates than traditional cigarettes. The results of the annual, federal survey was written up in both the New York Times and the Wall Street Journal. Tripp Mickle, an expert on drugs and alcohol for the WSJ, writes:
A new survey shows U.S. teenagers are more likely to use electronic cigarettes than traditional cigarettes, a trend researchers say is driven by teens’ belief that e-cigarettes are less harmful.
The University of Michigan’s Monitoring the Future survey could add fuel to the policy debate over the battery-powered devices, which heat nicotine-laced liquid into a vapor and are regulated far more loosely than combustible cigarettes.
This news and these articles caught our attention for a couple of reasons. First (full disclosure here), we work with e-cigarette companies, so we’re always interested when we see the words “regulated” and “e-cigarettes” in the same sentence. Second, we know that e-cigarette companies probably become very nervous when they see a phrase like “teens’ belief that e-cigarettes are less harmful”—not because they aren’t (I’m no doctor—jury’s still out on that one), but because making health claims and advertising to children can raise a lot of regulatory issues for these companies.
E-cigarette companies use our new Content Monitoring service—something we’re thrilled about, as we think we can really help them improve their monitoring and self-regulation. This service, like our Paid Search Monitoring, is designed to help assure affiliate, partner, and publisher compliance. But, unlike Paid Search Monitoring, which finds improper ads on search engines, this service is specifically targeted at the content on publisher websites—be they endorsements, review sites, or other content-driven advertising platforms.
As Mickle writes in the WSJ, at the moment, e-cigarettes are much more loosely regulated by both the FTC and the FDA than traditional cigarettes. That said, A) they are regulated, especially by the FTC, which is, in general, very concerned about any possible “health claims” in advertising—ie. “healthier than traditional cigarettes;” “non-addictive,” or “quit smoking”—as well as advertising to children. And B) it seems like the FDA is looking to increasingly regulate the industry, taking the first steps toward doing so this past April by specifically zeroing in on sales of e-cigarettes to minors. Many companies are interested in being one step ahead of both the FTC and the FDA so that if new regulations do come down, they will already be in compliance.
As is true in all kinds of performance marketing, companies are responsible for the claims their affiliates or publishers make. Our new Content Monitoring service can (among other things) scan known websites for forbidden copy—such as “healthy alternative” or “no carcinogens”, detect whether a site is lacking in proper affiliate disclosure language, and discover previously unknown websites that may have forbidden copy. One of the big issues in this space is that it is constantly changing. The FTC or FDA can change regulations. Laws regarding sales to minors vary from state to state. Furthermore, doctors are in an ongoing debate about both the potential health risks (addiction) and possible benefits (ability to quit traditional cigarettes more easily) of using e-cigarettes. These frequent changes make it very easy for publishers to find themselves unintentionally out of compliance and make it even more essential that e-cigarette companies know who is promoting their brand, where they are promoting it, and how they are promoting it. We can help do that.
Given the content of the survey and its coverage in national news sources, I think it is likely we’ll see both the FTC and the FDA taking an even bigger interest in e-cigarette companies. You can understand how they might be uncomfortable with the idea that kids think they’re safe and that doctors are saying they help curb addiction (even if true). The science, unfortunately, just isn’t there yet. And until it is, e-cigarette companies need to stay safe rather than sorry. That means they can’t make claims regarding their safety or ability to curb cigarette addiction and should steer clear of marketing to children, both on their own and on any publishers’ sites.
If you’re an e-cigarette company in search of compliance solutions, please do reach out to us at BrandVerity. Our sales team would love to show you the product and work with you to make sure it suits your needs. Also, please feel free to leave comments in the space below!
Posted by Jennie Scholick in Uncategorized
09 Dec 2014
Right before Thanksgiving, we ran a quick post outlining how to minimize the non-compliant paid search tactics that often crop up around Black Friday. We also said in that post that we’d update with any trends we noticed in the days leading up to and on Black Friday. This is that post! (Aren’t you excited?)
To be perfectly honest, there wasn’t as significant an increase in brand bidding around Thanksgiving as we feared we might see. This is good news for brands and retailers, as it means that for the most part, people acted appropriately around these major shopping days.
That’s not to say there wasn’t an uptick at all. This graph shows the incidence of non-brand ads using trademarked terms for the month leading up to Thanksgiving and continuing until December 5, 2014. The data is pulled from the same cohort of monitoring policies as our State of Branded Keywords Report, meaning that the search terms were brand names, domains, and common misspellings. It did not include searches like “[Brand Name] coupons,” which might have further inflated the numbers.
A few interesting things appear here. First, on the day before Thanksgiving, non-brand trademark usage dropped to its lowest levels all month. It’s hard to say what exactly caused this, but there is a general pattern of numbers dropping, then spiking throughout the month–perhaps as a result of fiddling with ad campaigns or attempts to hide from compliance teams. Wednesday was a lot of people’s last day in the office before leaving for the weekend and perhaps brand bidders decided to lay low until everyone was out.
Second, starting on Thanksgiving and continuing through Saturday, trademark usage by competing advertisers was particularly high. As you can see, numbers skyrocketed back up on Thursday, more than making up for the dip on Wednesday. The number of non-brand Ads/SERP on Black Friday was the highest for the entire month of November. The implication here is that people interested in targeting brands’ trademarks on paid search did take advantage of the holiday weekend’s increased shopping and the fact that many compliance and marketing teams were out of the office or simply overwhelmed by their own marketing campaigns.
The final interesting point here is that there is a (small) drop in non-brand Ads/SERP on Sunday, followed by another uptick on Monday and Tuesday, suggesting that Cyber Monday has become nearly as much of a target for brand bidders as Black Friday.
It is absolutely clear that brand bidders do target companies over the Thanksgiving weekend and that it would be in a brand’s best interest to put in place a monitoring system to catch the offenders, if they do not have one already. That said, we’re planning to do a bit more digging into how brands, especially in the online retail space, are targeted around the holidays more broadly. Preliminary looks at the data suggest that, overall, numbers of non-brand Ads/SERP go up in November and December and that’s a topic we’ll explore in more length in our next report on the State of Branded Keywords in Paid Search. Keep an eye out for that in January.
Did you notice an uptick in brand bidding over the holiday weekend? Let us know in the comments or by contacting us at BrandVerity!
We’ve recently been finding some ads appearing on Yahoo and Bing without a Display URL. We first noticed this on Yahoo, where the ads were simply composed of a headline and description text (without any space for a Display URL to appear). In some more recent monitoring, the examples we’ve found on Bing have always included a lone dot in the Display URL field. In the Bing example on the right, you can see this dot followed a gap where the Display URL would normally be.
Initially, this seemed like a test that Yahoo was running. Yahoo has often experimented with different ad formats in the past, so this wouldn’t be a shock at all. But how would brands be affected by an experiment like this? One potential issue would be that brands could no longer identify themselves in their own ads. Without the Display URL for proof, competing advertisers could look very similar—if not identical. If this experiment picked up momentum, what would brands do to distinguish their ads from the crowd?
Fortunately, this doesn’t seem like something that Yahoo or Bing is actually considering. The Bing examples, with a single dot instead of a Display URL, indicate that this is most likely a minor technical issue. Of course, in the short term that means that some SERPS will still include these types of ads. But overall these ads are quite rare, and in the long run we don’t expect to continue seeing them. This isn’t a significant cause for concern at this time. And if something changes, we’ll be keeping an eye out and let you know.
Posted by Jennie Scholick in Lead Generation
02 Dec 2014
If this blog series could be summed up in a single phrase, it would probably be “what you don’t know can definitely hurt you.” (Then again, that might be the theme of all BrandVerity blog posts). But, even if you know what your partners and publishers are doing, that doesn’t always fully fix the problem. This blog post will look at an example we found where a brand has managed to reap the benefits of working with lead gen partners—including increased coverage on Search Engine Results Pages (SERPs) and likely an increase in marketing efficiency—while maintaining nearly total control over brand image.
As we saw last week with the University of Phoenix, lead generation sites are fairly common in the Education industry—both for-profit and non-profit. While last week’s example demonstrated a serious case of brand poaching, this week’s shows a lead generation company working with a university to mutual benefit.
Here’s what we saw when we googled “devry.edu”:
The first search ad is for Devry University itself, as is the organic result. The 2nd search ad is what’s interesting. It’s for “Devry Washington DC” with a display URL of “devryuniversitycampus.org/DC”. (Other searches showed similar results for Devry in every major US city).
This page looks like it could be site run by DeVry University itself–it also could be a lead generation site masquerading as DeVry, like we saw with the University of Phoenix last time.
In fact, it’s neither.
A quick check of the site’s WhoIs information revealed that it was not owned by DeVry, but instead by a company called Leapfrog Online Customer Acquisition, LLC, a lead generation and marketing company that works closely with DeVry.
Their site notes that their “clients see results and partner with Leapfrog for extended engagements” with an average tenure of “over 8 years.” While many lead generation companies encourage longer-term partnerships, usually by offering some kind of enhanced, dynamic bidding system for leads, this kind of extended mutually beneficial partnership seems less common.
Based on our monitoring, it appears that Leapfrog manages all of DeVry’s local marketing, maintaining specific lead generation landing pages for all the different locations and programs the school offers. While the Leapfrog pages are clearly intended for lead generation, the main DeVry website is more general-purpose, giving a variety of information about the institution and its offerings.
By working together, DeVry and Leapfrog manage to dominate the paid search results. The only other ads that appear on DeVry’s keywords do not use DeVry’s trademark in the ad text. This may be due to a couple of factors: 1) By working exclusively with Leapfrog, DeVry ensures that no other advertisers have authorization to use its trademark in their ad copy. (As far as I could determine, DeVry does not seem to purchase leads from other lead gen companies. In the research I did for this series, I never saw an affiliate link for DeVry on another website, nor was I contacted by DeVry after entering information into other websites’ forms—including sites that were bidding on DeVry’s core brand terms. And 2) DeVry and Leapfrog may be working together to catch third-party trademark usage and report infractions to the search engines.
By working with Leapfrog, DeVry manages to both exert total control over their digital marketing efforts as well as deploy the expertise of a lead generation partner. For companies that find lead generation a useful source of new leads, this kind of partnership is definitely worth considering.
Do you know of other brands that interact with lead generation publishers in this way? Would you consider doing so? Leave a comment below or contact us at BrandVerity!
Posted by Jennie Scholick in Lead Generation
26 Nov 2014
If you’ve been following our lead gen series, you’ll know that we’ve already discussed the basic outline of lead generation sites and the problems that arise when those sites bid on your terms. This week we’re going to discuss what happens when a lead gen site takes brand bidding a step further by masquerading as a particular company.
Yeah, it is. In the example we looked a couple weeks ago, the insurance lead gen site produced a search ad that looked like this:
In this case, InsuranceStep is clearly targeting a person looking for Farmers, but in a way not dissimilar from how resellers work. In this ad we see both the brand name and the name of the lead gen company–almost like an ad for KitchenAid at Macy’s. A consumer may click that ad instead of Farmers’, but it’s fairly clear that they are not going directly to the brand’s site.
On the other hand, let’s look at an example from another industry that extensively uses lead generation sites (also known as “enrollment technology services”): for-profit education. Take a look at this ad generated by a search for “phoenix.edu”:
Here, we have EDegreeUSA clearly trying to convince a consumer that they are in fact the University of Phoenix, when—surprise!—they aren’t. In this case, a consumer would need to be paying attention to the display URL in order to have any idea that this is not a University of Phoenix ad. Both the headline and the ad text imply that EDegreeUSA is in fact the University of Phoenix.
Here’s the landing page that this ad leads to:
While this lead generation site only advertises the University of Phoenix, an improvement over the insurance sites we looked at last week, it has effectively stolen traffic from the University of Phoenix’s own site–especially as it bid on “phoenix.edu.”
Further, there is no guarantee that EDegreeUSA, a partner of DataChamps, LLC, will only sell that customer information to the University of Phoenix–or even sell it to them at all. Given that I could not find a single mention of University of Phoenix on E Degree USA’s site, beyond this landing page, I find it very possible that these leads never make it to the school at all.
Another question arises as well. At the bottom of that webform is a consent agreement, stating that the University of Phoenix has permission to contact the consumer:
This consent language aims to bring the University of Phoenix in compliance with the 2012 updates to the Telephone Consumer Protection Act, which requires express, written consent for a specific seller to autodial a consumer. Should EDegreeUSA sell this lead to someone other than the University of Phoenix and should that school telephone this consumer, both EDegreeUSA and the education institution could be in violation of the TCPA. Given the recent uptick in TCPA lawsuits and the variety of industries implicated–including education–this seems like a potential compliance issue that should be of concern to companies purchasing leads. If you don’t know exactly where your leads are coming from and what languages is on those sites, you may be opening yourself up to unnecessary risk.
Glad you asked! Another interesting example we found was in the home services sector where a search for “rotorooter” on Google Mobile revealed the following ad in the #1 position:
The landing page looked like this:
The site looks like it may be the Roto-Rooter official site–even displaying the Roto-Rooter logo and linking to the national RotoRooter Twitter account. Most people who land here probably assume it is the Roto-Rooter site. It isn’t. Instead, it’s a page owned by the Marquette Group—a digital marketing and lead generation agency that, according to their website, focuses on connecting local customers (note the local, El Paso franchise being advertised) with national brands.
The question here is one of how much control a brand is willing to give up. Marquette is providing a service to the national brand not only by collecting leads, but also by handling the process of creating local landing pages and targeting those pages at local consumers. On the other hand, if this were affiliate marketing, we’d consider this pretty shady: a partner bidding on brand terms, outbidding the brand itself, and selling that lead to the brand. The question I would have for Roto-Rooter is, how much are you really getting out of this situation? Is the lowered in-house marketing cost enough to make partnering with a company like Marquette worthwhile? It’s possible that it is. It’s also possible that they don’t know that they are paying Marquette for leads who were already searching for them in the first place.
The answer remains constant: monitor everything you can. The best way to protect your brand, your bottom line, and potentially your legal compliance is to know where your leads are coming from and how your partners are driving them. While there are good reasons to use lead gen sites, lead-driven marketing agencies, and publishing networks, these services are only beneficial insofar as you know how they work.
Do you think branded landing pages improve the ROI that brands receive from lead gen sites? Would you contract out local advertising for franchises? Do the the new TCPA rules make you nervous? Let us know in the comments or contact us!
This Friday officially kicks off the holiday shopping season (though if the emails I’ve been getting this week and this TechCrunch article are any indication, it’s already started). While we at BrandVerity look forward to the advent of holiday decorations, peppermint mochas, and really great deals just as much as everyone else, we also know that Black Friday can see a major uptick in the amount of brand bidding and trademark infringement appearing in paid search.
We wrote a bit about Black Friday and the attendant increase in non-compliant affiliate tactics last year. If you’re a merchant, this might be a good time to review the information there, in our Resellers series, and in our Guide to Affiliate Compliance. Because marketing teams tend to be swamped at this time of year, compliance issues can slip under the radar. The sheer quantity, however, of shopping during the holidays makes it imperative for brands and merchants to know exactly who is bidding on their brand terms and what those advertisers are promoting. The potential losses to non-compliant partners of all sorts can seriously eat into your expected Black Friday profits. Take the time now to review your agreements and remind your affiliates, resellers, and other partners of what you have agreed upon in order to avoid issues over the holiday weekend.
Watch this space next week for a recap of trends we noticed in paid search leading up to and on Black Friday. While we hope there won’t be much new to report–as that would mean everybody played fair this week–we expect that we’ll have some interesting examples to share.
To our US readers, have a happy, healthy, and compliant Thanksgiving, and to our international readers, we’ll see you in December!