There might never be a good way to learn about bad news, but some ways are definitely worse than others, e.g. when it involves you. That would certainly be the case with the biggest news to ripple through the performance marketing ecosystem this past week, news bigger than that of Yahoo and MSN deciding to no longer accept many continuity-themed ads. This news, too, involved continuity, but has been summed up in one letter "O", as in Oprah and Dr. Mehmet Oz, or better just "Oh Crap." For those not following the world of flogs and/or the percentage who do not have an account at a CPA Network (or work at a CPA Network), the "O" will look like an "L" to more than a few, as in lawsuit. As we first learned from an email sent to Azoogle Publishers, two lawsuits were filed, one by Illinois Attorney General Lisa Madigan and another by Oprah and Oz in New York City against 50 companies thus far (none of them publicly named).
The suit has received a fair amount of press, all of it saying about the same, and that is very little. But almost anything with Oprah’s name in it, makes it newsworthy, even a lawsuit (or perhaps, especially a lawsuit). Were one to try and make sense of the situation from what exists publicly, they probably couldn’t. The pieces can’t seems to figure out just how many companies the pair has sued – some say 40, others 50, a few claim 500, or even how to spell Dr. Oz’s first name -Mehmet or Memhet. This is certainly one of the only times I can recall when CBSNews.com, USAToday.com, MSNBC.com, even TMZ , not to mention almost every major metropolitan publication, carried a story that involved performance-based / affiliate marketing. Granted, it isn’t the notoriety that we wanted. That it has happened, couldn’t have come as a surprise. The real question in the back of people’s minds was when would it happen, and what would it look like. We’re beginning to find out.
As we saw in the ringtone subscription implosion, we have a State’s Attorney General leading the charge on behalf of consumers. If this plays out similar to the ringtone, we will soon see announcements of sizable settlements by the companies involved, using the funds to go after more. Like the Florida Attorney General, Madigan’s team has seized on the opportunity first, a natural fit given that Oprah’s show films in her state. The press release from the Illinois Attorney General’s office contains the requisite pro-consumer, anti-marketer language you might expect, e.g., "We must hold these Internet scammers accountable for their role in a seedy marketing game that steers unsuspecting consumers to online schemes." Gossipers will find the release somewhat tantalizing because it also names names. Oprah and Oz’s joint lawsuit on the other hand focuses on alleged trademark violations by marketers, not what impact the marketers had on users. They have deep pockets, but no public office to defend or public resume to pad, so we will see how far they go.
No doubt, many in our space will come out looking villainous, greedy, and/or lacking in judgment. It doesn’t take a legal background to think it could be a tad risky using ads and landing pages with the likeness of Oprah and Oz in a manner that appears to the average user as though they have approved the product and/or the page. Even today, we saw a landing page, that speaks in the first person of Oz and we have an album’s worth of screenshots of ones talking about the Oprah Diet or Rachel Ray Diet. In such examples, it’s pretty clear they have a rather weak case, and when dealing with billion dollar brands, claiming ignorance and promising not to do it again, might not get one far. But, what about the cases that aren’t as clear? We don’t know whether it is wrong to mention that the active ingredient in these pills was discussed on Oprah by Dr. Oz or featured in other news stories. MarketHealth, in an email to its affiliates, suggests not using any logos or imagery. Azoogle in their letter to publishers offered even more detailed advice on do’s and don’ts.
Oprah, Oz, and other celebrities play a vital role in raising the awareness. Mentions by them make businesses. By discussing Acai and Resveratrol, they are doing what countless authorities have done – adding legitimacy. The question we face as an industry is what should accountability look like. If we revert to accountability in the strictest sense it means that every advertiser and every agent of the advertiser would need to approve every creative and every landing page. That would be inefficient and not economically viable. It’s what is expected in brand campaigns. Even if we tried doing that, something would break. We’re still dealing with a subject matter where few true experts exist. And, we aren’t just dealing with trademark compliance here. We are also dealing with the much more difficult topic of health and beauty marketing. Advertorial’s, what we might loosely categorize flogs as, have a long history in content monetization. And, some have just the briefest disclaimer. But, the flogs, even those that say "Advertisement" have (in our non-legal opinion) run afoul by telling first person narrative with no factual basis. It’s one thing for it to be an ad with a bias for a product, but another that reads as an actual account of weight loss. It’s not enough to simply say somewhere at the bottom, the equivalent of, "By the way, these results aren’t even typical. They aren’t even possible."
Where do we stand today, and where does it go from here? Is this death to the advertorial online? That can’t be, but hopefully, it will result in better clarity not just fines which cause a rinse and repeat effect. That’s just human nature. Unfortunately, this is just the beginning. It’s a complex mess, and we haven’t even heard from the FTC yet. Diet advertising is a hot topic for them, so we know it’s only a matter of time. Perhaps this picture sums up the nature of our space better than words can:
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