NAD Addresses When Companies may be Liable for Consumer Reviews

This is not another post about coronavirus claims, but we do need to start there.

Truvani makes a dietary supplement that was formerly called “Under the Weather.” The company’s webpage devoted to that supplement featured reviews from various users, including the following:

• Michael K. (Verified Buyer): “Very happy with the product, I feel BC so well protected from COVID-19 with your supplements….”
• Theresa O. (Verified Buyer): “I really think I had undiagnosed corona virus. Nothing helped. Until I started taking under the weather. A few days later I started improving. I haven’t stopped taking it since.”

NAD was concerned that the reviews were presented as testimonials and that they conveyed an unsupported message regarding the product’s ability to protect against COVID-19. In response, Truvani pointed to Section 230 of the Communication Decency Act and argued that the reviews were independent content provided by third parties, rather than ads.

NAD disagreed, noting that “customer reviews on a company’s website may be advertising if they are curated to promote specific messages about the underlying product or if they are collected in a manner that does not ensure that they are reliable (i.e., submitted by verified users and reflect their truthful opinions) and representative of the range of consumer reactions to the product.”

The decision doesn’t provide a lot of information about the context in which the reviews appeared or how they were collected, so it’s hard to know exactly where Truvani went wrong. However, this case serves as a good reminder that while companies are generally not liable for the content of consumer reviews (as illustrated by this case), they can be held liable if they promote those reviews or curate them in a misleading manner.