Federal Register, Volume 89 Issue 10 (Tuesday, January 16, 2024)

[Federal Register Volume 89, Number 10 (Tuesday, January 16, 2024)]
[Proposed Rules]
[Pages 2526-2530]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00678]

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FEDERAL TRADE COMMISSION

16 CFR Part 465

RIN 3084-AB76

Rule on the Use of Consumer Reviews and Testimonials

AGENCY: Federal Trade Commission.

ACTION: Initial notice of informal hearing; final notice of informal
hearing; list of Hearing Participants; requests for submissions from
Hearing Participants.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'')
recently published a notice of proposed rulemaking (``NPRM'') in the
Federal Register, titled ``Rule on the Use of Consumer Reviews and
Testimonials'' (``Reviews and Testimonials Rule'' or ``Rule''), which
would prohibit certain specified unfair or deceptive acts or practices
involving consumer reviews or testimonials. The NPRM announced the
opportunity for interested parties to present their positions orally at
an informal hearing. Three commenters requested to present their
positions orally at the informal hearing.

DATES:
Hearing date: The informal hearing will be conducted virtually on
February 13, 2024, at 10 a.m. Eastern, and the Commission's Chief
Presiding Officer, the Chair, has appointed Administrative Law Judge
for the Securities and Exchange Commission, the Honorable Carol Fox
Foelak, to serve as the presiding officer of the informal hearing.
Participation deadline: If you are a hearing participant and would
like to submit your oral presentation in writing or file a
supplementary documentary submission, you can do so by submitting a
comment on this rulemaking docket. You must do so on or before January
30, 2024. Write ``Reviews and Testimonials Rule; Project No. P214504''
on your submission.

ADDRESSES: Hearing Participants may submit their oral presentations in
writing or file supplementary documentary submissions, online or on
paper, by following the instructions in Part IV of the SUPPLEMENTARY
INFORMATION section below. Write

[[Page 2527]]

``Reviews and Testimonials Rule; Project No. P214504'' on your
submission, and file it online through https://www.regulations.gov. If
you prefer to file your submission on paper, mail it via overnight
service to the following address: Federal Trade Commission, Office of
the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex R),
Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: Michael Ostheimer, Attorney, (202)
326-2699, Division of Advertising Practices, Bureau of Consumer
Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW,
Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

I. Background

On November 8, 2022, the Commission published an advance notice of
proposed rulemaking (``ANPRM'') in the Federal Register announcing that
the Commission was considering the promulgation of regulations to
prohibit certain specified unfair or deceptive acts or practices
involving consumer reviews or testimonials. See 87 FR 67424 (Nov. 8,
2022). On July 31, 2023, following the consideration of comments
received in response to the ANPRM, the Commission published a NPRM in
the Federal Register, proposing to add part 465 to 16 CFR, Chapter I,
to prohibit certain specified unfair or deceptive acts or practices
involving consumer reviews or testimonials. See 88 FR 49364 (July 31,
2023).
In accordance with section 18(b)(1) of the FTC Act, 15 U.S.C.
57a(b)(1), which requires the Commission to provide the opportunity for
an informal hearing in section 18 rulemaking proceedings, the NPRM also
announced the opportunity for interested persons to present their
positions orally at an informal hearing.\1\ During the NPRM's comment
period, the Commission received 100 responsive comments.\2\ Three of
the commenters requested the opportunity to present their position
orally at an informal hearing.
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\1\ See 88 FR 49364 (July 31, 2023).
\2\ See FTC, Reviews and Testimonials Rule, https://www.regulations.gov/document/FTC-2023-0047-0001/comment. The
Commission also received sixteen comments that are non-responsive
and two that are duplicates.
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II. The Requests for an Informal Hearing; Presentation of Oral
Submissions

Section 18 of the FTC Act, 15 U.S.C. 57a, as implemented by the
Commission's Rules of Practice, 16 CFR 1.11(e),\3\ provides interested
persons with the opportunity to present their positions orally at an
informal hearing upon request.\4\ To make such a request, a commenter
must submit, no later than the close of the comment period for the
NPRM, (1) a request to make an oral submission; (2) a statement
identifying the interested person's interests in the proceeding; and
(3) any proposal to add disputed issues of material fact to be
addressed at the hearing.\5\
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\3\ The FTC Act provides that ``an interested person is entitled
to present his position orally or by documentary submission (or
both).'' 15 U.S.C. 57a(c)(2)(A).
\4\ 16 CFR 1.11(e).
\5\ 16 CFR 1.11(e)(1) through (3).
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The following three commenters requested to present their positions
orally at the informal hearing in accordance with requirements of 16
CFR 1.11(e):
1. Fake Review Watch; \6\
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\6\ Fake Review Watch identified itself as an entity that ``has
been investigating online review fraud for over five years and has
produced over 80 videos documenting the scope of the problem across
multiple third-party review platforms,'' and it recommended that the
Commission impose specific disclosure requirements on third-party
review platforms. Fake Review Watch, Cmt. on NPRM at 1 (Aug. 8,
2023), https://www.regulations.gov/comment/FTC-2023-0047-0015.
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2. Interactive Advertising Bureau (``IAB''); \7\ and
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\7\ IAB represents ``over 700 leading media companies, brand
marketers, agencies, and technology companies'' responsible for
``selling, delivering, and optimizing digital advertising and
marketing campaigns,'' and whose members ``account for 86 percent of
online advertising expenditures'' in the U.S. IAB, Cmt. on NPRM at
1, (Sept. 29, 2023) https://www.regulations.gov/comment/FTC-2023-0047-0101.
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3. A group of three researchers at Brigham Young University, The
Pennsylvania State University, and Emory University
(``Researchers'').\8\
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\8\ The Researchers ``have studied how online review platforms
can earn consumer trust by taking specific actions against firms and
reviewers who write and propagate fake reviews.'' The Researchers,
Cmt. on NPRM, (Sept. 22, 2023) https://www.regulations.gov/comment/FTC-2023-0047-0060.
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The Commission finds these requests were adequate and therefore
will hold an informal hearing. These commenters will have the
opportunity to make oral presentations during the informal hearing. No
other interested persons requested under 16 CFR 1.11(e) to participate
in an informal hearing, and therefore no other interested persons will
be permitted to make oral presentations at the informal hearing. The
Commission declines to identify any group of interested persons with
the same or similar interest in the proceeding.\9\
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\9\ 16 CFR 1.12(a)(5) requires the initial notice of informal
hearing to include a ``list of the groups of interested persons
determined by the Commission to have the same or similar interests
in the proceeding.''
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III. Disputed Issues of Material Fact; Final Notice

In the NPRM, the Commission did not identify any disputed issues of
material fact that needed to be resolved at an informal hearing.
However, the Commission may still do so in the initial notice of
informal hearing, either on its own initiative or in response to a
persuasive showing from a commenter.\10\ IAB proposed several potential
disputed issues of material fact for the Commission's
consideration.\11\ IAB \12\ indicated that it ``intended to raise'':
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\10\ See 16 CFR 1.12(a)(3); 15 U.S.C. 57a(c)(2)(B); see also 88
FR 49364, 49381 (July 31, 2023).
\11\ Fake Review Watch requested that ``the FTC hold an informal
public hearing to give consumer advocates an opportunity to present
evidence showing how third-party review platform policies and
failures have contributed to the need for this rule in the first
place.'' Fake Review Watch, Cmt. on NPRM at 3-44. Fake Review Watch,
however, failed to identify any specific, disputed issues of
material fact. The Researchers requested the opportunity to speak at
a hearing to provide further explanation of their findings but did
not identify any specific disputed issues of material fact. The
Researchers, Cmt. on NPRM at 3.
\12\ IAB, Cmt. on NPRM at 15.
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1. ``Whether color, size, count, and flavor are the only attributes
that would not confuse consumers when combined on a product page.''
2. ``Whether the compliance costs for businesses will be minimal,
particularly if the `knew or should have known' standard is
finalized.''
3. ``Whether the Commission's finding that unintended consequences
from the NPRM are unlikely [is correct] (e.g., for fear of violating
the review suppression section, businesses will allow more fake reviews
to stay up on their websites).''
To be appropriate for cross-examination or rebuttal, a disputed
issue of material fact must raise ``specific facts'' that are
``necessary to be resolved'' \13\ and not ``legislative facts.'' \14\
Unlike specific facts,

[[Page 2528]]

legislative facts ``help . . . determine the content of law and of
policy'' and do not need to ``be developed through evidentiary
hearings'' because they ``combine empirical observation with
application of administrative expertise to reach generalized
conclusions.'' \15\ Moreover, the relevant legislative history explains
``disputed issues of material fact necessary to be resolved'' should be
interpreted narrowly.\16\ In this context, ``disputed'' and
``material'' are given the same meaning as in the standard for summary
judgment.\17\ As in summary judgment, the challenging party must do
more than simply assert there is a dispute regarding the Commission's
findings. If those findings are otherwise adequately supported by
record evidence, the challenging party must come forward with
sufficient evidence to show there is a genuine, bona fide dispute over
material facts that will affect the outcome of the proceeding.\18\ IAB
proposed disputed issues of material fact challenging (1) the
Commission's proposed definition of ``substantially different product''
as a ``product that differs from another product in one or more
material attributes other than color, size, count, or flavor''; (2) the
Commission's statements on the proposed Rule's economic impact; and (3)
the Commission's NPRM's finding that unintended consequences from
finalizing the proposed rule are unlikely.
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\13\ See, e.g., 16 CFR 1.13(b)(1)(i) (issues that ``must'' be
considered for cross-examination or rebuttal are only those disputed
issues of fact the Commission determines to be ``material'' and
``necessary to resolve'').
\14\ 16 CFR 1.12(b)(1) (``An issue for cross-examination or the
presentation of rebuttal submissions, is an issue of specific fact
in contrast to legislative fact.''). ``The only disputed issues of
material fact to be determined for resolution by the Commission are
those issues characterized as issues of specific fact in contrast to
legislative fact. It was the judgment of the conferees that more
effective, workable and meaningful rules will be promulgated if
persons affected by such rules have the opportunity afforded by the
bill, by cross-examination and rebuttal evidence or other
submissions, to challenge the factual assumptions on which the
Commission is proceeding and to show in what respect such
assumptions are erroneous.'' H.R. Rep. No. 93-1606, at 34 (Dec. 16,
1974) (Conf. Rep.). Further, as explained in Association of National
Advertisers, Inc. v. FTC, 627 F.2d 1151, 1164 (D.C. Cir. 1979), the
distinction between ``specific fact'' and ``legislative fact'' grew
out of a recommendation from the Administrative Conference of the
United States (ACUS):
Conference Recommendation 72-5 is addressed exclusively to
agency rulemaking of general applicability. In such a proceeding,
almost by definition, adjudicative facts are not at issue, and the
agency should ordinarily be free to, and ordinarily would, proceed
by the route of written comments, supplemented, perhaps, by a
legislative-type hearing. Yet there may arise occasionally in such
rulemaking proceedings factual issues which, though not
adjudicative, nevertheless justify exploration in a trial-type
format because they are sufficiently narrow in focus and
sufficiently material to the outcome of the proceeding to make it
reasonable and useful for the agency to resort to trial-type
procedure to resolve them. These are what the Recommendation refers
to as issues of specific fact.
Id. at 1164.
\15\ Ass'n of Nat'l Advertisers, 627 F.2d at 1161-62.
\16\ See, e.g., H.R. Rep. No. 93-1107, 93d Cong., 2d Sess.,
reprinted in 1974 U.S.C.C.A.N. 7702, 7728; Ass'n of Nat'l
Advertisers, 627 F.2d at 1163 (quoting H.R. Rep. No. 93-1606, at 33
(1974) (Conf. Report)).
\17\ As explained in the legislative history:
The words `disputed issues of material fact' are intended to
describe and limit the scope of cross-examination in a rulemaking
proceeding. Thus, the right of participants in the proceeding to
cross-examine Commission witnesses does not include cross-
examination on issues as to which there is not a bona fide dispute.
In this connection, the Committee considers the rules of summary
judgment applied by the courts analogous. Where the weight of the
evidence is such that there can be no bona fide dispute over the
facts, summary judgment is proper. Similarly, in such a situation
cross-examination would not be permitted; neither is a participant
entitled to cross-examination where the disputed issues do not
involve material facts. This language in the bill is used to
distinguish facts which might be relevant to the proceeding but not
of significant enough import to rise to the level of materiality.
The word material is used here with the same meaning it is given
under the common law rules of evidence. Also of importance is the
word `fact.' Cross-examination is not required regarding issues in
rulemaking proceedings which are not issues of fact. Examples of
such issues are matters of law or policy or matters whose
determination has been primarily vested by Congress in the Federal
Trade Commission. Thus, unless the subject matter with regard as to
which cross-examination is sought relates to disputed issues, which
are material to the proposed rule and which are fact issues, there
is no right to cross-examination on the part of any party to the
proceeding.
H.R. Rep. No. 93-1107, 93d Cong., 2d Sess., reprinted in 1974
U.S.C. C.A.N. 7702, 7728.
\18\ Id.; see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986) (explaining the standard as ``[o]nly disputes over
facts that might affect the outcome''); Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
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IAB's first proposed disputed issue of material fact questions the
proposed definition of ``substantially different product,'' a term
that, beyond the definition itself, appears only in proposed Sec.
465.3. IAB asserted that the record did not contain evidence as to
whether there are product attributes other than color, size, count, or
flavor that can be combined on a product page without misleading
consumers. In response to the NPRM, IAB and other commenters asserted
that the reviews of products with certain differences other than color,
size, count, or flavor could be linked without deceiving consumers and
gave examples of what they argue are or could be such non-deceptive
product differences.\19\ Other commenters supported the proposed
definition as written but did not address whether there were other non-
deceptive product differences.\20\ The Commission has decided to not
proceed at this time with proposed Sec. 465.3. It is therefore not
necessary to address IAB's proposed disputed issue of material fact
relating to the proposed definition of ``substantially different
product.''
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\19\ See IAB, Cmt. on NPRM at 8 (asserting that it is non-
deceptive for reviews of a book offered as a paperback, e-book,
audiobook, and hard cover to be presented on the same page);
Amazon.com, Inc., Cmt. on NPRM at 10 (Sept. 29, 2023), https://www.regulations.gov/comment/FTC-2023-0047-0085 (asserting non-
deceptive linking of crew neck and v-neck undershirts); U.S. Chamber
of Commerce, Cmt. on NPRM at 7 (Sept. 29, 2023), https://www.regulations.gov/comment/FTC-2023-0047-0087 (referring to linked
reviews for cotton and sateen sheets from the same company, for a
ceramic bowl with or without handles from a small seller, or for
annual iterations of dog toys with new characters); National Retail
Federation, Cmt. on NPRM at 7-8 (Sept. 29, 2023), https://www.regulations.gov/comment/FTC-2023-0047-0090 (asserting non-
deceptive linking of the same products with different patterns,
materials, or artwork; t-shirts with v-necks and crewnecks; scents
of soap; and individual golf clubs of the same set); Retail Industry
Leaders Association, Cmt. on NPRM at 3 (Sept. 29, 2023), https://www.regulations.gov/comment/FTC-2023-0047-0094 (arguing that other
attributes that do not change the overall design and formulation of
a product should not be considered ``substantial differences'');
Association of National Advertisers, Cmt. on NPRM at 15-16 (Sept.
29, 2023), https://www.regulations.gov/comment/FTC-2023-0047-0105
(asserting that the bundling of air fresheners with different scents
or sunscreens with different SPFs can be non-deceptive and making
similar assertions about products that come in squeeze tube versions
or that are sold in bundles).
\20\ See Trustpilot, Cmt. on NPRM at 10 (Sept. 29, 2023),
https://www.regulations.gov/comment/FTC-2023-0047-0084; Consumer
Reports, Cmt. on NPRM at 7 (Sept. 29, 2023), https://www.regulations.gov/comment/FTC-2023-0047-0099.
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IAB also proposed two other disputed issues of material fact, which
involve the Commission's findings: (1) on the proposed Rule's economic
impact; and (2) that unintended consequences from finalizing the
proposed rule are unlikely.
First, such findings are sufficiently supported by substantial
evidence in the record, and the commenter identified no evidence
challenging the FTC's conclusions. For example, the cost estimates in
the NPRM are specific and based on empirical data. Staff's careful
analysis of this data resulted in the well-reasoned conclusion that,
even under a ``heightened compliance review scenario'' for firms that
decide to be extra-cautious, and even with a conservative estimation of
benefits, such benefits would still dwarf the minimal costs.
Second, these two proposed issues challenge the Commission's
findings only as to ``legislative facts,'' which, unlike specific
facts, ``help . . . determine the content of law and of policy'' and do
not need to ``be developed through evidentiary hearings'' because they
``combine empirical observation with application of administrative
expertise to reach generalized conclusions.'' \21\ General concerns
about a rule's overall effect on the marketplace, whether framed in
terms of economic impact or unintended consequences, are precisely the
sort of questions of policy or broad fact intended to fall under the
category of ``legislative facts.'' As these two issues do not raise
questions of ``specific fact,'' they do not warrant cross-examination
and rebuttal submissions.\22\
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\21\ Ass'n of Nat'l Advertisers, 627 F.2d at 1161-62.
\22\ See supra nn.13-17.
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Thus, the Commission finds that there are no ``disputed issues of
material fact''

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to resolve at the hearing \23\ and no need for cross-examination or
rebuttal submissions.\24\
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\23\ If any interested person seeks to have additional disputed
issues of material fact designated, the person may make such request
to the presiding officer pursuant to 16 CFR 1.13(b)(1)(ii).
\24\ 16 CFR 1.12(b).
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This initial notice of informal hearing also serves as the ``final
notice of informal hearing.'' \25\ A final notice of informal hearing
is limited in its substance to matters that arise only when the
Commission designates disputed issues of material fact: who will
conduct cross-examination; whether any interested persons with similar
interests will be grouped together for such purposes; and who will make
rebuttal submissions.\26\ Because cross-examination and submission of
rebuttal evidence are not anticipated to occur in this informal
hearing, no separate final notice of informal hearing is necessary.
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\25\ 16 CFR 1.12(c).
\26\ Id.
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IV. List of Hearing Participants; Making an Oral Statement; Requests
for Documentary Submissions

Pursuant to Commission Rule 1.12(a)(4), 16 CFR 1.12(a)(4), the
following is the list of interested persons (``Hearing Participants'')
who will have the opportunity to make oral presentations at the
informal hearing:
1. Fake Review Watch;
2. IAB; and
3. The Researchers.
Oral statements will be limited to 30 minutes, although they may be
supplemented by documentary submissions as described below, and the
presiding officer may grant an extension of time for good cause shown.
Transcripts of the oral statements will be placed in the rulemaking
record. Hearing Participants will be provided with instructions as to
how to participate in the virtual hearing.
If you are a Hearing Participant and would like to submit your oral
presentation in writing or file a supplementary documentary submission,
you can do so by submitting a comment on this rulemaking docket. You
must do so on or before January 30, 2024. Write ``Reviews and
Testimonials Rule; Project No. P214504'' on your submission. If you
file a documentary submission under this section, your documentary
submission--including your name and your state--will be placed on the
public record of this proceeding, including on the website https://www.regulations.gov. To ensure the Commission considers your online
documentary submission, please follow the instructions on the web-based
form.
Because your documentary submission will be placed on the public
record, you are solely responsible for making sure that it does not
include any sensitive or confidential information. Your documentary
submission should not contain sensitive personal information, such as
your or anyone else's Social Security number; date of birth; driver's
license number or other state identification number or foreign country
equivalent; passport number; financial account number; or credit or
debit card number. You are also solely responsible for making sure your
documentary submission does not include any sensitive health
information, such as medical records or other individually identifiable
health information. In addition, your documentary submission should not
include any ``[t]rade secret or any commercial or financial information
which . . . is privileged or confidential''--as provided in section
6(f) of the FTC Act, 15 U.S.C. 46(f), and Commission Rule 4.10(a)(2),
16 CFR 4.10(a)(2)--including, in particular, competitively sensitive
information such as costs, sales statistics, inventories, formulas,
patterns, devices, manufacturing processes, or customer names.
Documentary submissions containing material for which confidential
treatment is requested must be filed in paper form, must be clearly
labeled ``Confidential,'' and must comply with Commission Rule 4.9(c),
16 CFR 4.9(c). In particular, the written request for confidential
treatment that accompanies the submission must include the factual and
legal basis for the confidentiality request and must identify the
specific portions to be withheld from the public record. See Commission
Rule 4.9(c). Your documentary submission will be kept confidential only
if the General Counsel grants your request in accordance with the law
and the public interest. Once your documentary submission has been
posted publicly at https://www.regulations.gov--as legally required by
Commission Rule 4.9(b), 16 CFR 4.9(b)--we cannot redact or remove it,
unless you submit a confidentiality request that meets the requirements
for such treatment under Commission Rule 4.9(c), 16 CFR 4.9(c), and the
General Counsel grants that request.
Visit the FTC website to read this document and the news release
describing it. The FTC Act and other laws that the Commission
administers permit the collection of submissions to consider and use in
this proceeding as appropriate. The Commission will consider all timely
and responsive documentary submissions it receives from the Hearing
Participants on or before January 30, 2024. For information on the
Commission's privacy policy, including routine uses permitted by the
Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.
Hearing Participants who need assistance should indicate as much in
their comment, and the Commission will endeavor to provide
accommodations. Hearing Participants without the computer technology
necessary to participate in video conferencing will be able to
participate in the informal hearing by telephone; they should indicate
as much in their comments.

V. Conduct of the Informal Hearing; Role of Presiding Officer

The Commission's Chief Presiding Officer, the Chair, has appointed
and designates the Honorable Carol Fox Foelak, Administrative Law Judge
for the Securities and Exchange Commission, to serve as the presiding
officer of the informal hearing. Judge Foelak will conduct the informal
hearing virtually using video conferencing starting at 10:00 a.m.
Eastern on February 13, 2024. The informal hearing will be available
for the public to watch live from the Commission's website, https://www.ftc.gov, and a recording or transcript of the informal hearing will
be placed in the rulemaking record.
Because there are no ``disputed issues of material fact'' to
resolve at the informal hearing, the presiding officer is not
anticipated to make a recommended decision. The role of the presiding
officer therefore will be to preside over and ensure the orderly
conduct of the informal hearing, including selecting the sequence in
which oral statements will be heard, and to place the transcript and
any additional written submissions received into the rulemaking record.
The presiding officer may prescribe additional procedures or issue
rulings in accordance with 16 CFR 1.13. In execution of the presiding
officer's obligations and responsibilities under the Commission Rules,
the presiding officer may issue additional public notices.

VI. Communications by Outside Parties to the Commissioners or Their
Advisors

Pursuant to Commission Rule 1.18(c)(1), 16 CFR 1.18(c)(1), the
Commission has determined that communications with respect to the
merits of this proceeding from any outside party to any Commissioner or

[[Page 2530]]

Commissioner advisor shall be subject to the following treatment.
Written communications and summaries or transcripts of oral
communications shall be placed on the rulemaking record if the
communication is received before the end of the comment period. They
shall be placed on the public record if the communication is received
later. Unless the outside party making an oral communication is a
member of Congress, such communications are permitted only if advance
notice is published in the Weekly Calendar and Notice of ``Sunshine''
Meetings.\27\
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\27\ See 15 U.S.C. 57a(i)(2)(A); 16 CFR 1.18(c).

By direction of the Commission.
Joel Christie,
Acting Secretary.
[FR Doc. 2024-00678 Filed 1-12-24; 8:45 am]
BILLING CODE 6750-01-P