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.