Affiliate Marketing Regulation: What the Tightening Rules Mean for Programmes

Affiliate marketing regulation has moved from background noise to front-of-mind compliance work for anyone running or managing a programme. The FTC in the United States, the ASA and CMA in the UK, and the European Commission have all sharpened their focus on how affiliate relationships are disclosed, how data is handled, and whether consumers can tell the difference between editorial content and paid promotion. If you run affiliate partnerships at any scale, the regulatory environment you operate in today is materially different from the one that existed five years ago.

This is not a theoretical concern. I have sat across the table from brand directors who had no idea what their affiliate publishers were saying about their products, how those publishers were disclosing the relationship, or whether their tracking setup was even GDPR-compliant. The programme was generating revenue, so no one had looked too closely. That posture is becoming genuinely risky.

Why Regulators Are Paying More Attention to Affiliate Marketing Now

Affiliate marketing grew fast, and it grew in ways that regulators found difficult to monitor. The model sits at the intersection of content, commerce, and advertising, and for a long time it occupied an ambiguous space in regulatory frameworks that were designed for more traditional media. A newspaper ad is clearly an ad. A review article that earns commission on every sale it drives is less obvious to the average reader, and regulators have spent the better part of the last decade trying to close that gap.

The shift in regulatory attention has been driven by a few converging factors. Consumer trust in online content has eroded. High-profile investigations into comparison sites, coupon publishers, and influencer-affiliate hybrids have shown regulators that the scale of undisclosed commercial content is significant. And the rise of content-driven affiliate programmes, where the line between editorial and advertising is genuinely blurred, has made the disclosure question more pressing than ever.

Affiliate marketing sits within a broader ecosystem of partnership models worth understanding properly. If you want context on how these commercial relationships work at a structural level, the Partnership Marketing hub covers the full landscape, from affiliate programmes to co-marketing and beyond.

What Has the FTC Actually Changed, and Does It Apply Outside the US?

The FTC updated its Endorsement Guides in 2023, and the changes were more substantive than a lot of coverage suggested. The revised guides make clear that material connections between endorsers and brands must be disclosed clearly and conspicuously, regardless of the medium. That includes affiliate links in blog posts, product recommendations in newsletters, and reviews on social media. The word “conspicuously” is doing a lot of work in that sentence. A disclosure buried at the bottom of a 2,000-word article, or hidden in a bio page that readers never visit, does not meet the standard.

The guides also extended liability more explicitly to brands. If an affiliate publisher fails to disclose, and the brand knew or should have known about the practice, the brand can be held responsible. This is a meaningful shift. It means that programme managers cannot simply hand publishers a set of terms and assume compliance. They need to monitor what their affiliates are actually publishing.

The FTC’s jurisdiction is technically limited to the United States, but its influence reaches further than its legal remit. UK and EU regulators have moved in a similar direction, and for any programme operating across borders, the FTC’s standards are a reasonable baseline to build from. The ASA in the UK has been running its own monitoring work on affiliate content, and the findings have not been flattering. A significant proportion of affiliate content reviewed in recent monitoring rounds failed to disclose the commercial relationship clearly.

The Copyblogger team have written usefully on affiliate marketing disclosure from a publisher perspective, and it is worth reading if you manage content-led affiliate programmes. The practical guidance on placement and language is grounded and specific.

How GDPR and Privacy Regulation Have Changed Affiliate Tracking

Disclosure is one regulatory pressure. Data privacy is another, and in some ways the more technically complex one. GDPR, which came into force in 2018, fundamentally changed the legal basis on which affiliate tracking operates. Most affiliate attribution relies on cookies placed on a user’s browser when they click a link. Under GDPR, placing those cookies requires either a legitimate interest basis or explicit consent. In practice, for most commercial tracking purposes, that means consent.

The downstream effect on affiliate programmes has been real. Cookie consent rates on many publisher sites are lower than programme managers assumed, which means a proportion of affiliate traffic was never being tracked accurately to begin with. Attribution gaps that were previously invisible have become more visible as consent frameworks have been implemented properly. Some programmes discovered that their reported revenue was more optimistic than their actual performance once tracking was cleaned up.

I saw a version of this when working with a client whose affiliate programme looked healthy on the surface. Decent volume, reasonable conversion rates, consistent commission payouts. When we audited the tracking setup against their consent management platform, we found that a material portion of their affiliate traffic was operating outside the consent framework. The numbers were not wrong exactly, but they were not the full picture either. Cleaning it up required a conversation with their legal team, their affiliate network, and several of their top publishers. It was not a quick fix.

The ePrivacy Regulation, which has been in development at EU level for several years, is expected to tighten cookie rules further when it eventually comes into force. Programmes that have not already moved toward consent-first tracking architectures are going to face a harder transition when that happens.

Beyond cookies, GDPR also has implications for the data that affiliate networks hold and share. Publisher data, click data, conversion data, all of it is subject to data processing agreements, retention limits, and subject access rights. Most established affiliate networks have updated their terms to reflect this, but brands running in-house programmes or working with smaller networks should audit their data arrangements carefully.

What the UK’s CMA Investigations Mean for Comparison and Review Publishers

The UK’s Competition and Markets Authority has been particularly active in the comparison and review space, which is where a large proportion of affiliate revenue is concentrated. Their investigations into price comparison websites and online reviews have produced findings that are directly relevant to affiliate programme managers.

The core concern is whether consumers understand that the rankings and recommendations they see on comparison sites and review platforms are influenced by commercial relationships. When a comparison site lists one product above another because it pays a higher commission, rather than because it is objectively better, and does not disclose that, the CMA considers this potentially misleading under consumer protection law.

This matters for affiliate programmes because it is not just the publisher who carries the risk. Brands that pay higher commissions to secure better placement, or that have exclusivity arrangements with comparison publishers, may find themselves implicated in investigations that start with the publisher. The CMA has been explicit that it expects brands to take responsibility for how their products are represented in commercial partnerships.

The practical implication is that programme managers need to understand not just whether their affiliates are disclosing the relationship, but how their products are being positioned relative to competitors on those affiliate sites. If the positioning is commercially driven rather than editorially justified, that is a regulatory exposure.

How Brands Are Responding: Programme Governance in Practice

The brands that are responding well to the regulatory environment are treating affiliate governance as a commercial function, not a compliance checkbox. There is a difference between having a set of publisher terms that include a disclosure clause and actually knowing whether your publishers are following it.

In practice, effective governance looks like a few specific things. Regular audits of publisher content, not just at onboarding but on an ongoing basis. Clear disclosure templates and guidance that publishers can use, rather than vague instructions to “disclose the relationship.” Tiered publisher relationships that distinguish between high-volume, low-scrutiny partners and high-trust, high-investment editorial partners. And escalation processes for when publishers breach terms, including the willingness to remove publishers who consistently fail to comply.

When I was running agency operations, the programmes we built for clients were always more conservative than the industry average on publisher onboarding. We would turn down volume if the publisher’s content quality or disclosure practices were questionable. That cost us short-term revenue on occasion. It also meant we never had a client end up in a regulatory conversation they were not prepared for. That trade-off looks even more sensible now than it did then.

Tools like those covered in Semrush’s affiliate marketing tools overview can help with publisher monitoring and content auditing at scale. The technology has improved significantly, and there is less excuse than there used to be for not knowing what your publishers are saying.

The Influencer-Affiliate Overlap: Where Regulation Gets Complicated

One of the more complex regulatory areas is the overlap between influencer marketing and affiliate marketing. The two have converged significantly. Influencers who post affiliate links are operating in a space where both endorsement disclosure rules and affiliate disclosure rules apply simultaneously, and the standards are not always identical.

The FTC and ASA both require that paid endorsements be disclosed clearly, regardless of whether the compensation is a flat fee, a gifted product, or a commission on sales. An influencer who posts an affiliate link without disclosing the commercial relationship is in breach of endorsement guidelines even if they believe the affiliate link is “just a link” rather than a paid promotion.

Brands that run affiliate programmes and also work with influencers need to make sure their guidance covers both contexts. The disclosure language required for a blog post and the disclosure language required for an Instagram story are different in format, but the underlying obligation is the same. Publishers like Later, which runs its own affiliate programme for social media tools, have had to think carefully about how disclosure works across different content formats. That kind of structural thinking about disclosure is worth adopting more broadly.

The Copyblogger piece on affiliate programme structure also touches on how content publishers think about the relationship between commercial partnerships and editorial integrity, which is relevant context for anyone managing influencer-affiliate hybrids.

What the EU Digital Services Act and Digital Markets Act Mean for Affiliate Programmes

The EU’s Digital Services Act and Digital Markets Act, both of which came into force in stages from 2022 onwards, have implications for affiliate marketing that are still being worked through in practice. The DSA imposes transparency requirements on online platforms, including requirements to label advertising clearly and to maintain registers of ads. For large platforms that host affiliate content, this creates additional disclosure obligations on top of existing consumer protection rules.

The DMA’s focus on gatekeeper platforms has implications for affiliate programmes that rely heavily on Google, Meta, or Amazon for traffic. Changes to how these platforms handle tracking, attribution, and advertising create structural uncertainty for affiliate models that depend on them. The move away from third-party cookies, which Google has been managing through its Privacy Sandbox initiative, is the most immediate practical expression of this.

Programmes that built their attribution models on third-party cookie tracking are having to rethink their measurement approach. First-party data strategies, server-side tracking, and network-level attribution are all being explored as alternatives. None of them are perfect replacements, and the industry is still in the middle of working out what good measurement looks like in a post-cookie environment.

I have spent a lot of time over the years thinking about measurement honesty in performance marketing. The affiliate industry has historically been more optimistic about its attribution than the evidence supports. The regulatory and technical pressure on tracking is, in a strange way, forcing a more honest conversation about what affiliate programmes are actually driving. That is not a bad outcome, even if the transition is uncomfortable.

What Good Compliance Looks Like in a Tightening Regulatory Environment

Compliance in affiliate marketing is not a one-time project. It is an ongoing operational function. The regulatory landscape will continue to evolve, and programmes that treat compliance as a static set of terms and conditions will find themselves behind the curve.

Good compliance in practice involves a few consistent disciplines. First, know your publishers. Not just their traffic numbers and conversion rates, but what they are actually publishing, how they are disclosing commercial relationships, and whether their content meets the standards your brand wants to be associated with. Second, keep your disclosure guidance current. The FTC and ASA both update their guidance periodically, and what was acceptable two years ago may not be acceptable now. Third, audit your tracking setup against your consent management platform at least annually. The gap between what you think you are tracking and what you are legally permitted to track is often larger than programme managers expect.

Fourth, and this is the one that gets skipped most often, build relationships with your legal and data protection teams before you need them urgently. I have seen too many affiliate programmes where the commercial team and the legal team have never had a substantive conversation about how the programme works. When a regulatory question arises, that is a bad time to be starting from scratch.

The broader context for all of this is that affiliate marketing is maturing as an industry. The early days of the channel were characterised by a tolerance for grey-area practices that regulators and consumers are no longer willing to extend. The programmes that will continue to grow are the ones built on genuine editorial value, transparent commercial relationships, and tracking architectures that respect user privacy. That is a higher bar than it used to be. It is also a more defensible business model.

If you are building or reviewing a partnership programme and want to understand how affiliate fits within a broader commercial partnership strategy, the Partnership Marketing hub covers the full range of models, from affiliate and co-marketing through to joint ventures and strategic alliances.

About the Author

Keith Lacy is a marketing strategist and former agency CEO with 20+ years of experience across agency leadership, performance marketing, and commercial strategy. He writes The Marketing Juice to cut through the noise and share what works.

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