Law professor Eric Goldman reports about a case from last week in which the suppliers of a weight-loss food product included a “thou shalt not post any negative reviews” gag clause in their contracts with consumers. The Federal Trade Commission sued the suppliers on grounds that the gag clause (plus other practices) were unfair, in violation of section 5 of the FTC Act. Last Friday a federal district court in Florida granted summary judgment against the suppliers, awarding the FTC a permanent injunction and disgorgement of the suppliers’ gross receipts minus refunds — with the suppliers’ owners to be personally liable — in an amount to be determined. FTC v. Roca Labs, Inc., No. 8:15-cv-2231-T-35TBM, slip op. (M.D. Fla. Sept. 14, 2018).
The gag clause does seem pretty obnoxious, judging by the court’s summary:
Since at least September 2012, Defendants have included a non-disparagement clause, also known as a “gag clause,” in the Terms and Conditions that prohibited customers from publishing disparaging comments about Roca Labs products. The Terms and Conditions also indicated that the purchase price [which was $480 with “valid insurance,” $640 otherwise] was “conditional,” “discounted,” or “subsidized” in exchange for the customer’s agreement to the gag clause and other provisions in the Terms and Conditions. The Terms and Conditions stated that the purchaser agrees to pay the full price of the product, $1,580.00, if the purchaser breached the gag clause.
In the September 2012 version, the Terms and Conditions stated that customers would have to compensate Defendants $100,000 for talking “badly about the Formula.” In the August 2014 version of the Terms and Conditions, customers were subject to being sued for an injunction and being billed $3,500.00 for legal fees and court costs for publishing any negative comments about the Defendants’ products, services, or employees.
That version also provided that Defendants could force purchasers to sign a notarized affidavit stating that the disparaging remarks were incorrect, contained factually incorrect material, and breached the Terms and Conditions.
Slip op. at 7-8 (extra paragraphing added).
As Eric points out in a law-review article, Congress passed the Consumer Review Fairness Act of 2016; “[a]s the House Report explains, the law seeks ‘to preserve the credibility and value of online consumer reviews by prohibiting non-disparagement clauses restricting negative, yet truthful, reviews of products and services by consumers.’ By doing so, the CRFA helps advance the effective functioning of marketplaces.”