Advertising Law Alerts

October 8th, 2015

FTC Challenges Consumer Gag Clauses as Unfair Practices

In two recent matters, the Federal Trade Commission ("FTC") challenged so-called gag clauses or non-disparagement provisions incorporated in contracts between marketers and consumers, alleging that prohibiting consumers from publishing negative reviews about the marketer is an unfair practice in violation of Section 5 of the FTC Act.

Details of the FTC Actions.

This summer, the FTC concluded its investigation of Greystar Real Estate Partners for a possible violation of Section 5 of the FTC Act based on a social media addendum included in residential leases with tenants at one of its Florida apartment complexes. The addendum prohibited tenants from making negative comments about the apartment complex on the internet. The addendum also provided that any breach of its terms would result in damages of $10,000 for the first violation and $5,000 for each additional violation. In a closing letter, the FTC said that it did not pursue an enforcement action against Greystar, since Greystar stopped including the addendum in its leases before being contacted by the FTC and notified all of the relevant tenants that the addendum had been voided.

More recently, the FTC sued a Florida-based marketer of weight-loss supplements, Roca Labs Nutraceutical USA, Inc. ("RL"), alleging that RL engaged in a variety of unfair practices, including the use of "gag clauses," monetary threats and lawsuits to stop consumers from posting negative reviews of its weight-loss products. The FTC highlighted the following RL practices as "unfair":

  • The online terms consumers had to accept before purchasing the products included: "You agree that regardless of your personal experience with RL, you will not disparage RL and/or any of its employees, products or services. This means that you will not speak, publish, or cause to be published, print, review, blog, or otherwise write negatively about RL, or its products or employees in any way."
  • A package insert included in product shipments said that the consumers agreed not to write any negative reviews about RL or their products and would owe hundreds of dollars to RL should they do so.
  • RL threatened consumers that it would enforce these provisions and also sued some buyers who posted negative comments. 

Jessica Rich, the Director of the FTC's Bureau of Consumer Protection, characterized these tactics as an attempt "to intimidate [RL]'s own customers from sharing truthful - and truly negative - reviews of their products."

The take-away.

These cases reflect the FTC's recognition that online reviews have become extremely important to consumers, and the complaint filed against RL confirms the FTC's position that attempts to suppress or manipulate truthful consumer commentary may be subject to FTC enforcement.

If you have any questions about this latest enforcement action, or about other advertising law issues, please contact Jeffrey A. Greenbaum at (212) 826 5525 or jgreenbaum@fkks.com, Terri Seligman at (212) 826 5580 or tseligman@fkks.com, or any other member of the Frankfurt Kurnit Advertising Group.