The Federal Trade Commission (“FTC”) has taken some steps recently to tackle the problem of companies that hijack their own customer product reviews when selling products on online platforms like Amazon. Review hijacking is one of many deceptive methods of manipulating consumer reviews to increase the chances of selling a new product. Essentially, review hijacking is where an online seller takes an existing product page with many positive consumer reviews and “updates” the product details (like photos, descriptions, etc.) so that a different product is now listed. The result is a page listing a new product that seems to have sold well and that has received good consumer reviews.
One would think that this type of unethical marketing practice would only be used if the products are similar. This is because customers will often name the product (at least generally) when writing a review such as writing: “This herbal supplement is great.” That sort of review will cause a noticeable problem if the product details have been “updated” to sell chainsaws. However, there are examples of sellers hijacking and repurposing their listings and using them to sell completely unrelated products (like a phone charger listing for a neck brace listing).
As part of its efforts to regulate this type of false advertising/marketing, in 2023, the FTC issued a Notice of Proposed Rule wherein review hijacking, reuse, and repurposing would be declared to be unfair and deceptive business practices. See here, starting page 49373. The proposed Rule has not yet been finalized. The proposed Rule would ban review hijacking involving “substantially different products,” which is defined as being different “in one or more material attributes other than color, size, count, or flavor.”
In an earlier action, the FTC brought an enforcement action against an online retailer called The Bountiful Company, which sells vitamins and other supplements. Bountiful was accused of hijacking its own consumer reviews on Amazon, not merely for the consumer reviews but also to repurpose Amazon “badges” saying “#1 Best Seller” and “Amazon’s Choice.” According to the FTC, Bountiful used a nuanced method of hijacking its own reviews by using an Amazon feature that allows sellers to create a “variation relationship” between different products. To be allowed, the “variation” had to be limited and narrow, based on such things as color, size, quantity, etc. If a “variation relationship” is created and allowed, then the products are listed together on the same product detail page on Amazon. This detail page is where the consumer reviews and badges are located. Bountiful was accused of manipulating this Amazon feature to create a “variation relationship” for products that were substantially different.
The enforcement action was settled in 2023, and Bountiful agreed to pay $600,000 in civil fines and agreed to various injunctive relief. In March 2024, the FTC began sending out refunds to customers who were affected by Bountiful’s deceptive marketing practices. The refunds exceed $527,000.
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