How Does the New York AI Law Impact Affiliate Marketers?
FollowMultiple PMA councils have recently been discussing the recent New York AI influencer law and whether or not they should be worried about it. The short answer is that everyone in the industry should understand it and some may soon find themselves directly impacted by it.
The TL:DR of the Law and How it Applies to Affiliate Marketing
I asked Gary Kibel, Partner at Davis+Gilbert and one of my favorite affiliate marketing attorneys, to explain in layman’s terms just why this new law is important in our particular industry:
“New York’s new synthetic performer law, which took effect June 9, 2026, requires anyone who produces or creates an advertisement to conspicuously disclose when the ad features an AI-generated performer that doesn’t depict any real, identifiable people. This obligation isn’t confined to big-budget commercials: it applies to social posts, video content, and influencer or affiliate marketing the moment that content is aimed at New York consumers, so anyone using AI-generated content in their campaigns needs to assume the law applies to them. Publishers and platforms carry real exposure too — once given actual notice that an ad they’re running contains an undisclosed synthetic performer, they generally have only five days to add a disclosure or take the content down. With civil penalties starting at $1,000 for a first violation and rising to $5,000 for each one after that, the practical takeaway for affiliate marketers, publishers, and creators is simple: build a clear, visible AI-disclosure step into your content workflow now, rather than waiting for a regulator to come knocking on your door.”
Details About the Law
Izzy Williams, Scooch, has been researching the issue and provided some great information from the Influencer Council:
Key Points
- Applies to anyone who creates or commissions ads distributed in New York
- “The new disclosure requirements mandate any person … who creates or produces an advertisement for a commercial purpose to conspicuously disclose when the advertisement contains a synthetic performer if the person has actual knowledge that a synthetic performer is in the advertisement.”
- Law says advertisers must “conspicuously” disclose the use of synthetic performers, but doesn’t define conspicuous disclosure or give any requirements or standards
- McDermott Will & Schulte suggests advertisers follow the FTC’s “clear and conspicuous” standard which requires disclosures to be “prominent in size, contrast, and duration to be noticed and understood by consumers; and not buried in fine print or hidden behind hyperlinks.”
- Does not apply to expressive works – like movies or video games as long as the character’s appearance in the works is consistent with what is presented in the advertisement
- Audio-only advertisements are excluded from the disclosure requirements
- If AI is used solely to translate the language of a human performer – it’s excluded
What Brands Should Consider
If publishers are creating ads to promote your products, you need to have the normal disclosure rules in place in your terms as well as monitor for appropriate disclosure. Our recent update to our Retailer Agreement Guide covers several items for brands to consider adding to their contracts that would cover these types of situations.
In addition to general terms about complying with applicable laws, the Guide has a section on “AI Usage and Content Integrity Guidelines” that delineates whether publishers in your program can use AI content and how it should be disclosed. In addition, it encourages brands to require affiliates that use AI to “keep up with regulatory/ethical frameworks around AI content.”
Click here to download the Retailer Agreement Guide for free
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Please consult a qualified attorney for guidance on specific legal or compliance matters.
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