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Am Law 100 firm with practices in Business, Digital Assets and Data Management, Intellectual Property, Labor & Employment, Litigation and Tax.

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July IP Litigation Newsletter

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James Sherer Speaks on Panel at The Masters Conference

You make soap, and you come out with a new scent. Then, due to supply issues, you need to change fragrance manufacturers but are confident the new fragrance is almost identical to the old fragrance. Can you use reviews of other soaps in the line? What if you make a widget and you upgrade it, adding a new feature? Do you start from square one, or can you use reviews of the earlier product? Most companies would probably do the latter. Consumers trust product reviews and have been shown to be suspicious of products without a track record. And product advancements, variations, and innovations are often reasonably related to an original product that started it all.



Well, the FTC thinks this is “review hijacking,” when a marketer “steals or repurposes reviews of another product.” The agency stated in a press release that “boosting your products by hijacking another product’s ratings or reviews is a relatively new tactic, but is still plain old false advertising.” And it cost <a href="https://www.ftc.gov/legal-library/browse/cases-proceedings/2223019-bountiful-company">Nature’s Bounty</a> $600,000.



Let’s unpack this. Amazon allows sellers to indicate when products are related or in a line, with differences in package size or color/scent/flavor, and are sold together on a single page. It also allows consolidation of reviews for the grape-flavored lollipops (ick) and the cherry lollipops (yum) and consolidation of the average star rating and the total number of reviews. This in turn boosts total reviews and can earn a seller an “Amazon Choice” badge. As <a href="https://sell.amazon.com/beginners-guide">Amazon describes it</a> for beginner sellers, “Products that vary only by color, scent, or size might be a good candidate for listing as variations. Ask yourself if the customer would expect to find the products together on the same page. If not, list them separately.”



The FTC alleged that The Bountiful Company, a maker of dietary supplements, packaged together as variations different disparate products, including bundling on one Amazon page some popular products with some of the dogs. And then the less-popular products got to bask in the halo of all of the glowing reviews left for other, better-selling products. Here we are talking about gummy supplements designed for stress relief and peace of mind or zinc tablets with zinc gummies being positioned together. Sounds an awful lot like line extensions, where the label will call out “Brought to you by the No. 1 Brand.” Nope; this was deemed a “review takeover” and a “manipulation.”



An FTC blog described this case as “<a href="https://www.ftc.gov/business-guidance/blog/2023/02/mutiny-bountiful-proposed-settlement-challenges-review-hijacking">Mutiny on the Bountiful</a>.” OK, we love that. But we feel our own mutiny coming on here. If the FTC felt this practice was deceptive or misleading, how about articulating this as new business guidance? And giving brands a chance to react? This was how the FTC used to work. It gave brands the tools to know how the FTC staff interpreted Section 5 in various circumstances and gave brands the benefit of the doubt and some time to comply. The FTC said it called out this “hijacking” practice as deceptive last fall in its <a href="https://www.ftc.gov/news-events/news/press-releases/2022/10/ftc-explore-rulemaking-combat-fake-reviews-other-deceptive-endorsements">notice of proposed rulemaking</a> over fake reviews. This got exactly one line, and it was “review reuse fraud: some sellers hijack or repurpose reviews posted about another product or service,” and it was presented with fake, paid, and inside reviews. Let’s be clear – this was not necessarily “plain old false advertising.” It might be what this FTC defines as such. But reasonable minds can certainly differ here. And this case just feels like a gotcha game over a practice that is certainly not uncommon and is undertaken with no nefarious intent.



So, enough ranting. We cannot enact a mutiny (although goodness knows Commissioner Wilson <a href="https://www.adventures-in-law.com/ftc/why-the-resignation-of-commissioner-wilson-from-the-ftc-is-a-big-deal/">gave it her best shot</a>). What we can do is encourage anyone who sells on a third-party marketplace or directly to take a close look at the review posting practices. If the FTC was not clear about how it felt about these practices before, brands are certainly on notice now. We issued this warning before to look at <a href="https://www.adventures-in-law.com/ftc/ftc-reviews-fashion-nova-review-suppression-leads-to-double-trouble/">review moderation practices</a>. But this is a variation and relates not to what reviews you post but to what products you associate with those reviews. New products, under the FTC’s logic, should not show reviews from earlier versions of the product. Take a careful look at how you are bucketing products together for purposes of displaying reviews. There may be a way to do some consolidation that the FTC does not find deceptive, perhaps by adding a tag to each verified review identifying specifically which product was purchased linked to the review itself. But for many brands, this is going to take some time to parse through and unravel, as the fix is not necessarily quick or easy.

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Review Hijacking; Abusing Third-Party Marketplaces: FTC Finds Evil in Fairly Common Practices

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