This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents.

Rules and Regulations Federal Register

17143 

Vol. 87, No. 59 

Monday, March 28, 2022 

1Michael Luca, Reviews, Reputation, and 

Revenue: The Case of Yelp.com, Harv. Bus. Sch. 

Working Paper No. 12–016, 14 (2016). 

2Chris Anderson, The Impact of Social Media on 

Lodging Performance, 12(15) Cornell Hospitality 

Report 6, 11 (2012). 3Public Law 114–258, 130 Stat. 1355 (2016) 

(codified at 15 U.S.C. 45b). 4H.R. Rep. No. 114–731, at 5 (2016). 

5 Id. 

6 15 U.S.C. 45b(a)(2). The statute clarifies that the 

term ‘‘pictorial’’ includes pictures, photographs, 

video, illustrations, and symbols. 15 U.S.C. 

45b(a)(4). 

7 15 U.S.C. 45b(a)(3)(A). However, the term ‘‘form 

contract’’ does not include an employer-employee 

or independent contractor contract. 15 U.S.C. 

45b(a)(3)(B). 

8 15 U.S.C. 45b(b)(1) (emphasis added). There are 

additional rules of construction, 15 U.S.C. 45b(b)(2), 

and exceptions, 15 U.S.C. 45b(b)(3). 

9 12 U.S.C. 5531, 5536. For definitions of 

‘‘covered person,’’ ‘‘service provider,’’ and 

‘‘consumer financial product or service,’’ see 

section 1002 of the CFPA, 12 U.S.C. 5481, and the 

associated regulation, 12 CFR part 1001. 

BUREAU OF CONSUMER FINANCIAL 

PROTECTION 

12 CFR Chapter X 

Bulletin 2022–05: Unfair and Deceptive 

Acts or Practices That Impede 

Consumer Reviews 

AGENCY: Bureau of Consumer Financial 

Protection. 

ACTION: Compliance bulletin. 

SUMMARY: Reviews of products and 

services help to promote fair, 

transparent, and competitive markets. 

When firms frustrate the ability of 

consumers to post honest reviews of 

products and services that they use, 

they may be engaged in conduct 

prohibited by the Consumer Financial 

Protection Act (CFPA). The Consumer 

Financial Protection Bureau (Bureau) is 

issuing this bulletin to remind regulated 

entities of the CFPA’s requirements and 

explain how the Bureau intends to 

exercise its enforcement and 

supervisory authorities on this issue. 

DATES: This bulletin is applicable as of 

March 28, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Christopher Shelton, Senior Counsel, 

Legal Division, at 202–435–7700. If you 

require this document in an alternative 

electronic format, please contact CFPB_

Accessibility@cfpb.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Role of Consumer Reviews 

Numerous studies and surveys have 

confirmed the importance of online 

reviews across the economy. For 

example, one prominent study 

estimated that a one-star rating increase 

on Yelp.com translated to an increase of 

5 to 9 percent in revenues for a 

restaurant.1 Another study found that a 

one-point boost in a hotel’s online 

ratings on travel sites is tied to an 11 

percent jump in room rates, on average.2

To date, academic research has not 

focused specifically on markets for 

consumer financial products and 

services. But online reviews are also 

commonplace in many of those markets, 

and the Bureau expects them to play an 

increasing role in helping consumers 

choose between financial providers. 

This can create an incentive for 

dishonest market participants to attempt 

to manipulate the review process, rather 

than compete based on the value of their 

services, which can frustrate a 

competitive marketplace. 

The Bureau notes that consumer 

reviews can be important to two groups 

of consumers: The consumers who read 

and rely upon reviews, as well as the 

consumers who take the time to express 

their viewpoints by writing them in the 

first place. Of course, these groups can 

be overlapping. Firms that interfere with 

consumer reviews can harm both of 

these groups. 

B. Public Policy Regarding Consumer 

Reviews 

Congress unanimously enacted the 

Consumer Review Fairness Act in 2016, 

in response to abuses by companies that 

restricted consumer reviews.3 As the 

legislative history of the statute 

explains, the ‘‘wide availability’’ of 

consumer reviews ‘‘has caused 

consumers to rely on them more heavily 

as credible indicators of product or 

service quality. In turn, businesses have 

sought to avoid negative reviews . . . 

through provisions of form contracts 

with consumers restricting such 

reviews. These provisions typically 

impose monetary or other penalties for 

publishing negative comments regarding 

the provider’s services or products.’’ 4

The legislative history explains that 

these ‘‘gag clauses or non-disparagement 

clauses’’ are harmful to consumers.5

As discussed below, the Consumer 

Review Fairness Act protects ‘‘covered 

communications.’’ A covered 

communication is defined as ‘‘a written, 

oral, or pictorial review, performance 

assessment of, or other similar analysis 

of, including by electronic means, the 

goods, services, or conduct of a person 

by an individual who is party to a form 

contract with respect to which such 

person is also a party.’’ 6 For simplicity, 

this bulletin will refer to ‘‘covered 

communications’’ as consumer reviews. 

Relatedly, a ‘‘form contract’’ is 

defined as a contract with standardized 

terms that is: ‘‘used by a person in the 

course of selling or leasing the person’s 

goods or services;’’ and ‘‘imposed on an 

individual without a meaningful 

opportunity for such individual to 

negotiate the standardized terms.’’ 7

The Consumer Review Fairness Act 

provides, with limited exceptions, that 

‘‘a provision of a form contract is void 

from the inception of such contract’’ if 

the provision: 

A. Prohibits or restricts the ability of an 

individual who is a party to the form contract 

to engage in a covered communication; 

B. imposes a penalty or fee against an 

individual who is a party to the form contract 

for engaging in a covered communication; or 

C. transfers or requires an individual who 

is a party to the form contract to transfer to 

any person any intellectual property rights in 

review or feedback content, with the 

exception of a non-exclusive license to use 

the content, that the individual may have in 

any otherwise lawful covered 

communication about such person or the 

goods or services provided by such person.8

For simplicity, this bulletin will refer 

to these various types of provisions as 

restrictions on consumer reviews. 

II. Violations of the Consumer 

Financial Protection Act (CFPA) 

Sections 1031 and 1036 of the CFPA 

prohibit a covered person or service 

provider from engaging in an ‘‘unfair, 

deceptive, or abusive act or practice’’ 

that is ‘‘in connection with any 

transaction with a consumer for a 

consumer financial product or service, 

or the offering of a consumer financial 

product or service.’’ 9 There are a 


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17144 Federal Register / Vol. 87, No. 59 / Monday, March 28, 2022 / Rules and Regulations 

10CFPB v. Gordon, 819 F.3d 1179, 1192 (9th Cir. 

2016) (internal quotation marks and punctuation 

omitted). 

11See, e.g., FTC v. World Media Brokers, 415 F.3d 

758, 763 (7th Cir. 2005). 

12See, e.g., Supervisory Highlights: Summer 

2017, 82 FR 48703, 48708 (Oct. 19, 2017) (deceptive 

waivers of borrowers’ rights in loss mitigation 

agreements that were unenforceable under 12 CFR 

part 1026 (Regulation Z), implementing the Truth 

in Lending Act); Supervisory Highlights, Issue 24, 

Summer 2021, 86 FR 36108, 36117 (July 8, 2021) 

(deceptive waivers of rights in security deed riders 

that were unenforceable under 12 CFR part 1024 

(Regulation X), implementing the Real Estate 

Settlement Procedures Act). 

13See, e.g., FTC v. IAB Marketing Assoc., LP, 746 

F.3d 1228, 1233 (11th Cir. 2014). 

14See matters cited in note 12. 

15 12 U.S.C. 5531(c). 

16Complaint, FTC v. Roca Labs, Inc., No. 8:15– 

cv–02231 (M.D. Fla. filed Sept. 24, 2015), https:// 

www.ftc.gov/system/files/documents/cases/ 

150928rocalabscmpt.pdf. 

17H.R. Rep. No. 114–731, at 5 (2016) (citing id.). 

18Complaint at 27, FTC v. Roca Labs, Inc., No. 

8:15–cv–02231. 

19 Id. at 22. 

20 Id. at 27. 

21Complaint, In the Matter of Sunday Riley 

Modern Skincare, LLC, File No. 192–3008 (F.T.C. 

Nov. 6, 2020), https://www.ftc.gov/system/files/ 

documents/cases/192_3008_c4729_sunday_riley_

complaint.pdf. 

number of ways that covered persons or 

service providers could violate this 

prohibition by interfering with 

consumer reviews. 

A. Deceiving Consumers Who Wish To 

Leave Consumer Reviews, Using 

Purported Contractual Restrictions That 

Are Unenforceable 

‘‘An act or practice is deceptive if: (1) 

There is a representation, omission, or 

practice that (2) is likely to mislead 

consumers acting reasonably under the 

circumstances, and (3) the 

representation, omission, or practice is 

material.’’ 10

It is well-established that material 

misrepresentations to consumers that 

are unsupported under applicable law 

can be deceptive.11 In particular, 

including an unenforceable material 

term in a consumer contract is 

deceptive, because it misleads 

consumers into believing the contract 

term is enforceable. The Bureau’s 

examiners have repeatedly cited such 

unenforceable contract provisions in 

their supervisory work.12 Moreover, 

disclaimers in a contract such as 

‘‘subject to applicable law’’ do not cure 

the misrepresentation caused by the 

inclusion of an unenforceable contract 

term. Additionally, subsequent 

disclaimers cannot cure a 

misrepresentation.13

Consistent with these principles, it 

would generally be deceptive to include 

a restriction on consumer reviews in a 

form contract, given that the restriction 

would be void under the Consumer 

Review Fairness Act. Consumers can be 

expected to read the language to mean 

what it says: That they are restricted in 

their ability to provide consumer 

reviews. But that is not the case, since 

the provision is void under applicable 

law. And the option to post candid 

reviews about products or services 

would be material to the many 

American consumers who do so. 

Moreover, the Bureau believes that 

enforcing the deception prohibition is 

particularly important in this context, 

given that consumer reviews are a 

significant driver of competition in the 

modern economy. 

In addition, if a covered person or 

service provider attempts to pressure a 

consumer to remove an already posted 

negative review, by invoking a 

restriction on consumer reviews that is 

void under the Consumer Review 

Fairness Act, that would also generally 

be a deceptive act or practice. Note that 

this would be an additional deceptive 

act or practice, not a precondition for 

establishing the kind of deceptive act or 

practice already described. Damage can 

be done by chilling consumers’ reviews 

even if, unknown to the consumer, the 

covered person or service provider does 

not later follow up by invoking the 

contract provision against consumers 

who post negative reviews. Accordingly, 

in other contexts, Bureau examiners 

have found unenforceable contract 

provisions to be deceptive regardless of 

whether the provision is ultimately 

enforced.14 But if a covered person or 

service provider does invoke the void 

contract provision against the consumer 

(for example, by claiming that the 

consumer is contractually required to 

remove a negative review, or that the 

consumer is contractually required to 

stop posting such reviews, or assessing 

a penalty or fee if the consumer does not 

remove a negative review), that can be 

expected to further deepen the 

materially misleading impression that 

the affected consumers would have. It 

would be natural for consumers to 

believe that they need to remove 

existing negative reviews, stop posting 

such reviews, or pay the purported 

penalty or fee, which is not the case. 

B. Unfairly Depriving Consumers of 

Information Using Restrictions on 

Consumer Reviews 

In addition to deceiving consumers 

who wish to leave reviews, purported 

contractual restrictions on consumer 

reviews can unfairly harm the many 

other consumers who rely upon reviews 

when deciding what products and 

services to purchase. 

Under section 1031(c) of the CFPA, an 

act or practice is unfair if: (A) It causes 

or is likely to cause substantial injury to 

consumers which is not reasonably 

avoidable by consumers; and (B) such 

substantial injury is not outweighed by 

countervailing benefits to consumers or 

to competition.15

In applying the CFPA’s unfairness 

prohibition, the Bureau finds persuasive 

the reasoning of the Federal Trade 

Commission (FTC) in FTC v. Roca Labs, 

Inc.16 Roca Labs was an enforcement 

action that predated the Consumer 

Review Fairness Act, but it was cited in 

the that statute’s legislative history.17 In 

Roca Labs, the FTC alleged that the 

Defendants’ use of ‘‘contractual 

provisions that prohibit purchasers from 

speaking or publishing truthful or 

nondefamatory negative comments or 

reviews about the Defendants, their 

products, or their employees’’ was 

unfair under the Federal Trade 

Commission Act.18 The defendants’ 

conduct ‘‘caused or are likely to cause 

purchasers to refrain from commenting 

negatively about the Defendants or their 

products. By depriving prospective 

purchasers of this truthful, negative 

information, Defendants’ practices have 

resulted or are likely to result in 

consumers buying Roca Labs products 

they would not otherwise have 

bought.’’ 19 This substantial injury was 

not reasonably avoidable by consumers 

or outweighed by countervailing 

benefits to consumers or to 

competition.20 The Bureau intends to 

apply similar unfairness principles if it 

encounters a covered person or service 

provider, acting within the scope of the 

CFPA, who uses contractual restrictions 

to restrict consumer reviews. 

C. Deceiving Consumers Who Read 

Consumer Reviews About the Nature of 

Those Reviews 

Whether or not there are any 

contractual restrictions on consumer 

reviews, covered persons or service 

providers can engage in a deceptive act 

or practice by manipulating consumers’ 

comprehension of the set of reviews that 

are available. Two recent FTC matters 

illustrate this concern. 

First, in the Sunday Riley matter, the 

FTC alleged that a company instructed 

its employees to leave reviews of its 

products on a third-party website, and 

also to ‘‘dislike’’ negative reviews left by 

real customers.21 The FTC found that 

this was deceptive. By engaging in this 

conduct, the company had 

‘‘represented, directly or indirectly, 

expressly or by implication, that certain 

reviews . . . reflected the experiences 


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Federal Register / Vol. 87, No. 59 / Monday, March 28, 2022 / Rules and Regulations 17145 

22 Id. at 4. 

23 Id. 

24Complaint at 2, In the Matter of Fashion Nova, 

LLC, File No. 192–3138 (F.T.C. Jan. 25, 2022), 

https://www.ftc.gov/system/files/documents/cases/ 

192_3138_fashion_nova_complaint.pdf. 

25 Id. 

26 5 U.S.C. 553(b). 

27 5 U.S.C. 603(a), 604(a). 

28 44 U.S.C. 3501–3521. 

or opinions of users of the products.’’ 22

But the company ‘‘failed to disclose that 

the online consumer reviews were 

written by’’ the company’s employees, 

which ‘‘would be material to consumers 

. . . in connection with a purchase or 

use decision.’’ 23 And, although in 

Sunday Riley the posters were the 

company’s own employees, the Bureau 

notes that another way that companies 

can deceive consumers is by paying 

non-employees to post reviews that are 

materially misleading. 

Second, in the Fashion Nova matter, 

a company that sold products through a 

website allegedly had ‘‘four- and fivestar reviews automatically post to the 

website, but did not approve or publish 

hundreds of thousands lower-starred, 

more negative reviews.’’ 24 The FTC 

found that this was a deceptive act or 

practice, misleading consumers who 

read the website into believing that the 

posted ratings accurately reflected the 

consumer reviews submitted.25

Of course, there are also numerous 

other ways that firms could improperly 

manipulate consumer reviews. The 

Bureau intends to carefully scrutinize 

whether covered persons or service 

providers are skewing consumers’ 

understanding of consumer reviews in a 

manner that is deceptive (or unfair or 

abusive). 

III. Conclusion 

In summary, covered persons and 

service providers are liable under the 

CFPA if they deceive consumers using 

restrictions on consumer reviews that 

are unenforceable under the Consumer 

Review Fairness Act, if they unfairly 

deprive consumers of information by 

using such restrictions, or if they 

deceive consumers who read reviews 

about the nature of those reviews. If the 

Bureau identifies a violation of the 

CFPA, it intends to use its authorities to 

hold the violators accountable. 

IV. Regulatory Matters 

This is a general statement of policy 

under the Administrative Procedure Act 

(APA). It provides background 

information about applicable law and 

articulates considerations relevant to the 

Bureau’s exercise of its authorities. It 

does not confer any rights of any kind. 

As a general statement of policy, it is 

exempt from the APA’s notice-andcomment rulemaking requirements.26

Because no notice of proposed 

rulemaking is required, the Regulatory 

Flexibility Act does not require an 

initial or final regulatory flexibility 

analysis.27 It also does not impose any 

new or revise any existing 

recordkeeping, reporting, or disclosure 

requirements on covered entities or 

members of the public that would be 

collections of information requiring 

approval by the Office of Management 

and Budget under the Paperwork 

Reduction Act of 1995.28

Rohit Chopra, 

Director, Consumer Financial Protection 

Bureau. 

[FR Doc. 2022–06446 Filed 3–25–22; 8:45 am] 

BILLING CODE 4810–AM–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 21 

[Docket No. FAA–2020–1092] 

Airworthiness Criteria: Special Class 

Airworthiness Criteria for the 

Airobotics Inc. OPTIMUS 1–EX 

Unmanned Aircraft 

AGENCY: Federal Aviation 

Administration (FAA), Department of 

Transportation (DOT). 

ACTION: Issuance of final airworthiness 

criteria. 

SUMMARY: The FAA announces the 

special class airworthiness criteria for 

the Airobotics Inc. Model OPTIMUS 

1–EX unmanned aircraft (UA). This 

document sets forth the airworthiness 

criteria the FAA finds to be appropriate 

and applicable for the UA design. 

DATES: These airworthiness criteria are 

effective April 27, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Christopher J. Richards, Emerging 

Aircraft Strategic Policy Section, AIR– 

618, Strategic Policy Management 

Branch, Policy and Innovation Division, 

Aircraft Certification Service, Federal 

Aviation Administration, 6020 28th 

Avenue South, Room 103, Minneapolis, 

MN 55450, telephone (612) 253–4559. 

SUPPLEMENTARY INFORMATION: 

Background 

Airobotics Inc. (Airobotics) applied to 

the FAA on September 25, 2019, for a 

special class type certificate under title 

14, Code of Federal Regulations (14 

CFR), § 21.17(b) for the Model 

OPTIMUS 1–EX unmanned aircraft 

system (UAS). 

The Model OPTIMUS 1–EX consists 

of a rotorcraft UA and its associated 

elements (AE) including communication 

links and components that control the 

UA. The Model OPTIMUS 1–EX UA has 

a maximum gross takeoff weight of 23 

pounds. It is approximately 70 inches in 

width, 70 inches in length, and 13 

inches in height. The Model OPTIMUS 

1–EX UA uses battery-powered electric 

motors for vertical takeoff, landing, and 

forward flight. The UAS operations 

would rely on high levels of automation 

and may include multiple UA operated 

by a single pilot, up to a ratio of 20 UA 

to 1 pilot. Airobotics anticipates 

operators will use the Model OPTIMUS 

1–EX for surveying, mapping, 

inspection of critical infrastructure, and 

patrolling. The proposed concept of 

operations (CONOPS) for the Model 

OPTIMUS 1–EX identifies a maximum 

operating altitude of 400 feet above 

ground level (AGL), a maximum cruise 

speed of 27 knots, operations beyond 

the visual line of sight (BVLOS) of the 

pilot, and operations over human 

beings. Airobotics has not requested 

type certification for flight into known 

icing for the Model OPTIMUS 1–EX. 

The FAA issued a notice of proposed 

airworthiness criteria for the Airobotics 

Model OPTIMUS 1–EX UAS, which 

published in the Federal Register on 

November 20, 2020 (85 FR 74280). 

Summary of Changes From the 

Proposed Airworthiness Criteria 

Based on the comments received, 

these final airworthiness criteria reflect 

the following changes, as explained in 

more detail under Discussion of 

Comments: A new section containing 

definitions; revisions to the CONOPS 

requirement; changing the term ‘‘critical 

part’’ to ‘‘flight essential part’’ in 

D&R.135; changing the basis of the 

durability and reliability testing from 

population density to limitations 

prescribed for the operating 

environment identified in the 

applicant’s CONOPS per D&R.001; and, 

for the demonstration of certain 

required capabilities and functions as 

required by D&R.310. 

Additionally, the FAA re-evaluated its 

approach to type certification of lowrisk UA using durability and reliability 

testing. Safe UAS operations depend 

and rely on both the UA and the AE. As 

explained in FAA Memorandum 

AIR600–21–AIR–600–PM01, dated July 

13, 2021, the FAA has revised the 

airworthiness criteria to define a 

boundary between the UA type 

certification and subsequent operational 

evaluations and approval processes for 


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