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ZDNet’s Blog, and: Whither Affiliate Registrant Liability?

Following on our recent blog about affiliate pharmacy networks, ZDNet had a blog from Ryan Naraine, Dancho Danchev & Adam O’Donnell about the structure of pharmaceutical affiliate networks.

One excerpt from the blog is revealing:

So once you’ve been approved as an affiliate and receive your unique tracking code, you’re free to choose the pharmaceutical products, pick up the creative and choose of the many templates for online pharmacy shops, then start driving traffic to them.(Emphasis added.)

Some affiliate programs add value to the registration process by introducing ratio calculators in order to make it easier for new participants to calculate their earnings based on the selling price that they choose for the item.

The domain name registrant (the affiliate) is able to choose the pharmaceutical products sold on the website, is responsible for driving traffic to the website, and gets a cut of sales through the website. If the drugs are sold without a valid prescription or in violation of other laws, what sort of criminal liability does the registrant face? Law enforcement has traditionally targeted individuals higher up in the organization, not domain name registrants, unless he or she was also involved at the upper echelons of the criminal organization.

We think that affiliate registrants are about to face greater risk. Because the website registrant chooses the drugs sold on the website, and is responsible for the website’s search engine optimization and/or advertising, there’s an arguable case for criminal liability. After all, it’s indisputable that the affiliate network thrives, in part, because of the hordes of individual affiliates who boost search engine optimization, often anonymously.

With that, here’s a tidbit from LegitScript. In at least one state legislature (we’re not telling which one), legislation is going to be introduced early next year that will specifically hold the registrants of websites selling prescription drugs accountable. They’ll have to notify the Board of Pharmacy in their state if they are the registrant of any website offering prescription drugs. And the registration will have to be accurate, not anonymous.

A full solution? Of course not, especially with just one state. But this brings us back to the point we always raise about rogue Internet pharmacies and transparency: rogue pharmacy affiliate networks hate the sunlight. If this rule were enacted in all 50 states, it would be a good way to slow the proliferation of rogue affiliate websites.