• by Wendy Davis , Staff Writer @wendyndavis, October 5, 2023

Attorneys general from 23 states are cheering the Federal Trade Commission's proposal to crack down on businesses that attempt to dupe consumers by burying fake reviews.

“A merchant that only posts positive consumer reviews on its website, instead of both favorable and negative reviews, can potentially mislead consumers into believing that such reviews represent most or all of the reviews submitted to the merchant’s website,” the attorneys general of Washington, D.C., Pennsylvania and Illinois write in comments joined by 20 other state attorneys general.

They also say companies today engage in the “prevalent and nefarious” practice of threatening consumers who post bad write-ups with legal action.

“When merchants retaliate against consumers who post negative reviews, such as by hiring lawyers to threaten legal action against the consumers, these threats, even if not carried out, can have a chilling effect by bullying consumers into removing their reviews, even if they were fully justified in posting the reviews in the first place,” the attorneys general of Washington, D.C., Pennsylvania and Illinois write in comments joined by 20 other state attorneys general.

The comments come in response to a broad FTC proposal to crack down on online fakery by prohibiting businesses from engaging in certain practices -- including purchasing phony reviews, suppressing bad write-ups, and offering incentives for positive critiques.

While the attorneys general support the potential rules outlawing review suppression, they suggest a few tweaks to the FTC's suggested language. For instance, the FTC's proposal would prohibit “unjustified” legal threats over bad reviews, but the attorneys general say the FTC should explicitly prohibit companies from threatening to “enforce an agreement that is void, voidable, or unenforceable.”

That phrase could prevent companies from relying on non-disclosure agreements to prevent bad reviews, given that those types of non-disclosure agreements may be unenforceable, according to the attorneys general.

The FTC's proposal has drawn comments from an array of groups, including consumer watchdogs to ad industry trade groups. The Association of National Advertisers, which is among the commenters, argues that some of the proposed rules -- such as ones that would prohibit companies from offering incentives for good reviews -- could chill legitimate commercial speech.