We recently reported on the Federal Trade Commission’s (“FTC”) increased enforcement against review curation policies that disproportionately restrict or remove negative reviews. Now, the Consumer Financial Protection Bureau (“CFPB”) has issued a Bulletin that makes clear that the suppression or manipulation of consumer reviews posted about financial products and services is an unfair and deceptive act or practice. The CFPB’s Bulletin drew from recent FTC guidance and enforcement activity as well as the Consumer Review Fairness Act of 2016 and stated that conduct such as (1) deceptively posting fake reviews that appear independent, (2) suppressing or manipulating reviews such as by limiting the posting of negative reviews, or (3) imposing contractual ‘gag’ clauses on consumers in form contracts that prohibit honest reviews is generally a violation of the Consumer Financial Protection Act.
In its Bulletin, the CFPB highlighted as examples of “unfair and deceptive acts or practices that impede consumer reviews” two recent FTC enforcement actions against Sunday Riley and Fashion Nova, both of which were brought under Section 5 of the FTC Act. In the Sunday Riley matter, employees were allegedly instructed to write reviews on the Sephora website using a VPN to hide their identities and to downvote or dislike negative reviews posted by real consumers. And, in the Fashion Nova case, the advertiser allegedly posted four- and five-star reviews automatically, but held three star and below reviews for further approval, resulting in the suppression of thousands of reviews. As a result of a Supreme Court decision last year, the FTC cannot rely on violations of Section 5 to obtain equitable monetary relief against first time offenders. However, as the CFPB made clear in its Bulletin, banks and financial institutions that engage in unfair and deceptive acts and practices that impede consumer reviews will be subject to steep civil penalties under the Consumer Financial Protection Act.
Marketers should take note. Both the FTC and CFPB have prioritized maintaining the transparency and fairness of consumer reviews. Review form contracts to ensure that they do not contain confidentiality provisions, non-disparagement clauses or other elements that could be understood to prohibit the posting of honest reviews. Second, review moderation guidelines to ensure that they do not result in the suppression of honest reviews about your products or services. Third, ensure that your Social Media Policies and Influencer Guidelines require compliance with the FTC’s Endorsement and Testimonial Guides.