AFFILIATE MARKETING GUIDELINES
These Affiliate Marketing Guidelines (the “Guidelines”) must be adhered to pursuant to the Affiliate Marketing Agreement (the “Agreement”) between SolarSesame, Inc. (“SolarSesame”) and any affiliate marketer (the “Affiliate”). As set forth in the Agreement, Affiliates must always comply with all existing laws and regulations, and these Guidelines must be followed at all times by all Affiliates. If you have reason to believe an Affiliate in not in compliance with these Guidelines, please contact us immediately at email@example.com with sufficient detail for us to address the issues raised in your email.
At all times, all Affiliates must comply with all existing laws and regulations; refrain from making any false or misleading express or implied claims; ensure the “net impression” of any advertisement is truthful; have evidence (a “reasonable basis”) to back up all claims made in any advertisements before making the claims. These Guidelines are not legal advice, they are subject to change, and they are not an exclusive list of what Affiliate must do to comply with the Agreement and existing law and regulation.
Use of disclosures.
When utilizing disclosures in any advertisements, the disclosures must be legally sufficient. Affiliates should focus on placement, proximity, and prominence of the disclosure so consumers will notice it in connection with the triggering claim on every platform and device the ad will run on. Affiliates should avoid scrolling to get to a disclosure, but if necessary, use text or visual cues to encourage consumers to scroll down to see it. It helps to make the disclosure unavoidable, for example, preventing the consumer from completing a transaction without first viewing the disclosure. Affiliates should ensure that nothing on the webpage or screen detracts from consumers noticing the disclosure, such as graphics, sound, or hyperlinks.
Affiliates should generally avoid using hyperlinks when disclosures are an integral part of the claim, but if necessary should: make the hyperlink obvious and place it as close as possible to the relevant information; label the hyperlink as specifically as possible to convey the importance of the information to which it leads; use the hyperlink styles consistently so that consumers know when a link is available; take consumers directly to the disclosure on the click-through page; assess the effectiveness of the hyperlink by monitoring click-through rates and make changes accordingly; and consider how hyperlinks function on various programs and devices.
Affiliates should refrain from running ads on devices or platforms where clear and conspicuous disclosure cannot be made and should avoid using pop-up disclosures as they can easily be blocked or ignored. Affiliates should repeat disclosures as needed, especially on lengthy websites or if consumers have many routes through a website.
Use of third-party endorsements or testimonials.
Before engaging third parties, such as influencers, bloggers, and celebrities, to speak about products or services in social media, Affiliates must adopt internal policy on social media endorsements that complies with the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (Endorsement Guides), including:
- Providing guidance on when the advertiser creates a material connection with a third party speaking on its behalf, making that party an endorser covered by the Endorsement Guides (sponsored endorser). For example, an advertiser creates a material connection by:
- hiring an agency to blog, post, or serve as a community manager on its behalf (both the agency and its employees then become sponsored endorsers);
- entering into an agreement with an individual to blog or post;
- paying an individual to blog or post;
- providing free accommodations or travel to an individual;
- providing discounts, sweepstakes entries, or other incentives to an individual;
- providing an individual with free prizes for giveaways or sweepstakes on social media platforms;
- providing an individual with free samples to review on social media platforms;
- providing an individual with free samples after that person has blogged or posted independently, especially if providing the free samples creates the expectation of additional free samples (which makes the individual a sponsored endorser going forward, not retroactively);
- incentivizing consumer reviews; or
- engaging affiliate marketers to advertise, blog, endorse, or sell on its behalf (making the affiliates and their employees sponsored endorsers).
Affiliates must require each sponsored endorser to execute a contract or other written guidelines that governs the sponsored endorser’s actions, including requiring the endorser:
- to disclose its material connection to the advertiser clearly and conspicuously; and
- to refrain from making any false or misleading statements about advertiser’s products and services.
- use FTC guidance to implement rules about making clear and conspicuous disclosure of a material connection.
- require that sponsored endorsers are monitored to ensure they disclose their material connection and otherwise comply with their contract or guidelines.
- establish repercussions for when sponsored endorsers fail to follow advertiser’s guidelines, such as:
- correcting or requiring the sponsored endorser to correct any failure by the sponsored endorser to disclose a material connection properly; and
- terminating a sponsored endorser.
- Provide a training program for employees, agencies, and endorsers on the policy.
For more information on the use of endorsements in social media, see Practice Note, Advertising and Promotions in Social Media; Social Media Influencer Marketing Campaign: Legal Issues Checklist; and The FTC’s Endorsement Guides: What People are Asking. For a sample social media endorsement policy, see Standard Document, Social Media Endorsement Policy.
No marketing to children.
Affiliates should not market toward children, target children, or knowingly collect information from children.
Email CAN-SPAM compliance.
Affiliates must Comply with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM) when planning to send marketing or other commercial emails. To comply with CAN-SPAM, ensure any emails:
- are clearly and conspicuously identified as an advertisement or solicitation somewhere in the body of the message.
- include a clear and conspicuous electronic opt-out mechanism (for example, return email or other internet-based mechanisms).
- provide the sender’s valid physical postal address.
- do not use deceptive from lines, subject lines, or other false header information.
- comply with a consumer’s opt-out request within ten business days.
- treat forward-to-a-friend emails like commercial emails if it gives consumers an incentive for using that function.
- follow additional guidelines if the email contains sexually oriented material.
For more information on CAN-SPAM compliance, see Practice Note, CAN-SPAM Act Compliance and Email Marketing Campaign: CAN-SPAM Act Compliance Checklist.
Respect the intellectual property rights of others.
Do not infringe on the intellectual property of others; whether copyright, trademark, patent, moral, or other rights. In the event an Affiliate online campaign allows consumers to post their own content (known as user-generated content or UGC) on the Affiliate’s website, the Affiliate should protect itself from liability for copyright infringement under the Digital Millennium Copyright Act (DMCA) safe harbor. The advertiser must:
- post a policy (Takedown Policy) on its website:
- disclosing how it will remove infringing materials from its site if properly notified;
- identifying and providing contact information for its designated agent to receive DMCA copyright infringement notices (also known as DMCA takedown notices); and
- advising users of its policy to terminate repeat infringers.
- designate an agent to receive DMCA takedown notices from copyright owners and register the agent’s name and contact information with the US Copyright Office using the Copyright Office’s online system.
- expeditiously remove or disable access to the infringing material on obtaining knowledge of it, including by receiving proper notification.
For more information on the DMCA safe harbor, see Standard Document, Website Copyright (DMCA) Policy and Legal Update, Copyright Office Announces Electronic System for Designating Agents Under DMCA.