The FTC has announced that it will hold an informal hearing on its proposed rule regarding consumer reviews and testimonials.  This informal hearing follows the Commission’s June 2023 notice of proposed rulemaking (NPRM) on the topic.  We previously blogged about key takeaways from the NPRM, which proposed to address a variety of consumer review and testimonial practices that the Commission views as unfair or deceptive, including fake reviews, review hijacking, purchasing reviews, employee reviews, review suppression, and the use of fake indicators of social media influence. 

According to the informal hearing notice published last week, the FTC granted three commenters’ requests to make oral presentations:  Fake Review Watch; the Interactive Advertising Bureau (IAB); and a group of researchers from Brigham Young University, The Pennsylvania State University, and Emory University.  These commenters will have the opportunity to speak because they requested to present their positions orally pursuant to Section 18 of the FTC Act, 15 U.S.C. 57a.  They also will have the opportunity to file a supplementary documentary submission.  However, because the Commission determined that these and other commenters did not raise any “disputed issues of material fact,” the hearing will not include the cross-examination of witnesses, nor will parties have the opportunity to file rebuttal submissions. Notably, one commenter—the IAB —had proposed three disputed issues of material fact, but the Commission determined that these proposed issues did not warrant cross-examination because the IAB had not provided affirmative evidence to challenge the Commission’s conclusions, nor were the proposed issues “specific” facts, as opposed to “legislative” facts.

The notice of informal hearing also announced that the Commission “has decided to not proceed at this time with proposed Section 465.3.”  This proposed section would have “prohibited a business from using or repurposing, or causing the use or repurposing of, a consumer review written or created for one product so it appears to have been written or created for a substantially different product.”  16 C.F.R. 465 (IV)(C).  The Commission referenced comments to the NPRM in explaining its decision not to pursue this proposed section:  according to the Commission, many commenters highlighted examples of instances in which aggregating reviews for products with “non-deceptive differences” could be helpful to consumers, such as grouping reviews for books offered in different formats (e.g., paperback, hardcover, audiobook, e-book). 

The informal hearing will be held on February 13, 2024, and members of the public may attend virtually.  A recording or transcript is expected to be made available after the hearing on the FTC’s website.

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Photo of Yaron Dori Yaron Dori

Yaron Dori has over 25 years of experience advising technology, telecommunications, media, life sciences, and other types of companies on their most pressing business challenges. He is a former chair of the firm’s technology, communications and media practices and currently serves on the…

Yaron Dori has over 25 years of experience advising technology, telecommunications, media, life sciences, and other types of companies on their most pressing business challenges. He is a former chair of the firm’s technology, communications and media practices and currently serves on the firm’s eight-person Management Committee.

Yaron’s practice advises clients on strategic planning, policy development, transactions, investigations and enforcement, and regulatory compliance.

Early in his career, Yaron advised telecommunications companies and investors on regulatory policy and frameworks that led to the development of broadband networks. When those networks became bidirectional and enabled companies to collect consumer data, he advised those companies on their data privacy and consumer protection obligations. Today, as new technologies such as Artificial Intelligence (AI) are being used to enhance the applications and services offered by such companies, he advises them on associated legal and regulatory obligations and risks. It is this varied background – which tracks the evolution of the technology industry – that enables Yaron to provide clients with a holistic, 360-degree view of technology policy, regulation, compliance, and enforcement.

Yaron represents clients before federal regulatory agencies—including the Federal Communications Commission (FCC), the Federal Trade Commission (FTC), and the Department of Commerce (DOC)—and the U.S. Congress in connection with a range of issues under the Communications Act, the Federal Trade Commission Act, and similar statutes. He also represents clients on state regulatory and enforcement matters, including those that pertain to telecommunications, data privacy, and consumer protection regulation. His deep experience in each of these areas enables him to advise clients on a wide range of technology regulations and key business issues in which these areas intersect.

With respect to technology and telecommunications matters, Yaron advises clients on a broad range of business, policy and consumer-facing issues, including:

  • Artificial Intelligence and the Internet of Things;
  • Broadband deployment and regulation;
  • IP-enabled applications, services and content;
  • Section 230 and digital safety considerations;
  • Equipment and device authorization procedures;
  • The Communications Assistance for Law Enforcement Act (CALEA);
  • Customer Proprietary Network Information (CPNI) requirements;
  • The Cable Privacy Act
  • Net Neutrality; and
  • Local competition, universal service, and intercarrier compensation.

Yaron also has extensive experience in structuring transactions and securing regulatory approvals at both the federal and state levels for mergers, asset acquisitions and similar transactions involving large and small FCC and state communication licensees.

With respect to privacy and consumer protection matters, Yaron advises clients on a range of business, strategic, policy and compliance issues, including those that pertain to:

  • The FTC Act and related agency guidance and regulations;
  • State privacy laws, such as the California Consumer Privacy Act (CCPA) and California Privacy Rights Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, the Virginia Consumer Data Protection Act, and the Utah Consumer Privacy Act;
  • The Electronic Communications Privacy Act (ECPA);
  • Location-based services that use WiFi, beacons or similar technologies;
  • Digital advertising practices, including native advertising and endorsements and testimonials; and
  • The application of federal and state telemarketing, commercial fax, and other consumer protection laws, such as the Telephone Consumer Protection Act (TCPA), to voice, text, and video transmissions.

Yaron also has experience advising companies on congressional, FCC, FTC and state attorney general investigations into various consumer protection and communications matters, including those pertaining to social media influencers, digital disclosures, product discontinuance, and advertising claims.

Photo of Laura Kim Laura Kim

Laura Kim draws upon her experience in senior positions at the Federal Trade Commission to advise clients across industries on complex advertising, privacy, and data security matters. She provides practical compliance advice and represents clients in FTC and State AG investigations. Ms. Kim…

Laura Kim draws upon her experience in senior positions at the Federal Trade Commission to advise clients across industries on complex advertising, privacy, and data security matters. She provides practical compliance advice and represents clients in FTC and State AG investigations. Ms. Kim advises on a wide range of consumer protection issues, including green claims, influencers, native advertising, claim substantiation, Made in USA claims, children’s privacy, subscription auto-renewal marketing, and other digital advertising matters. In addition, Ms. Kim actively practices before the NAD, including recent successful resolution of matters for both challengers and advertisers. She co-chairs Covington’s Advertising and Consumer Protection Practice Group and participates in the firm’s Internet of Things Initiative.

Ms. Kim re-joined Covington after a twelve-year tenure at the FTC, where she served as Assistant Director in two divisions of the Bureau of Consumer Protection, as well as Chief of Staff in the Bureau of Consumer Protection and Attorney Advisor to former Chairman William E. Kovacic. She worked on key FTC Rules and Guides such as the Green Guides, Jewelry Guides, and the Telemarketing Sales Rule. She supervised these and other rule making proceedings and oversaw dozens of the Commission’s investigations and enforcement actions involving compliance with these rules. Ms. Kim also supervised compliance monitoring for companies under federal court or Commission order.

Ms. Kim also served as Deputy Chief Enforcement Officer at the U.S. Department of Education, where she helped establish a new Enforcement Office within Federal Student Aid. In this role, she managed investigations of higher education institutions and oversaw issuance of fines and adverse actions for institutions in violation of federal student aid regulations. Ms. Kim also supervised the borrower defense to repayment division and the Clery campus safety and security division.

Photo of Alexandra Remick Alexandra Remick

Alexandra Remick is a member of the Advertising and Consumer Protection Group. Her practice focuses on regulatory and compliance matters related to consumer protection. She has experience advising clients on topics including endorsements, social media influencers, native advertising, automatically renewing subscriptions, consumer reviews…

Alexandra Remick is a member of the Advertising and Consumer Protection Group. Her practice focuses on regulatory and compliance matters related to consumer protection. She has experience advising clients on topics including endorsements, social media influencers, native advertising, automatically renewing subscriptions, consumer reviews, and claim substantiation in a variety of contexts. She frequently provides advice on specific advertising compliance questions and works with companies on developing internal advertising compliance policies. She has also represented multiple clients in FTC investigations involving consumer protection issues, has conducted regulatory due diligence on multiple transactions, and has drafted comments on multiple rulemakings.

Photo of Jessica Ke Jessica Ke

Jessica Ke is an associate in the firm’s Privacy and Cybersecurity and Advertising and Consumer Protection practice groups. Jessica advises clients on a wide range of regulatory and compliance issues, including compliance with state comprehensive privacy laws, advertising substantiation issues, and participation in…

Jessica Ke is an associate in the firm’s Privacy and Cybersecurity and Advertising and Consumer Protection practice groups. Jessica advises clients on a wide range of regulatory and compliance issues, including compliance with state comprehensive privacy laws, advertising substantiation issues, and participation in the regulatory process. Jessica also maintains an active pro bono practice.