United States: The Internet Has Spoken: When Is A Product "Top Rated"?

Last Updated: July 12 2019
Article by Terri J. Seligman

It's been a dry spell for my subway series: I haven't seen many good ads to riff on for a while now. This morning, though, I saw an ad with this claim: "The internet's top-rated sheets delivered right to your door." Aggregating customer reviews and ratings for purposes of a claim like this requires some serious analysis. Fortunately, NAD has engaged in that analysis on several occasions and its decisions provide useful guidance for marketers looking to harness the customer reviews and ratings it has received to craft a claim.

NAD's recent case involving claims by tax preparation software provider, TaxSlayer LLC, is a case in point. TaxSlayer claimed to be "#1 Rated on Trustpilot," a review site. Intuit, maker of TurboTax, challenged the claim.

First, NAD examined what messages were conveyed by the claim. It determined that the claim not only conveyed the literal (truthful) message that Trustpilot rated TaxSlayer #1 in the tax preparation software category, but also the implied claim that the rating was "based on a reliable and representative survey of consumers using products across the entire tax preparation software category." Moreover, NAD determined, although the reviews on Trustpilot represent customers' satisfaction with their own products and not product comparisons, the claim "Rated #1" was an inherently comparative claim. NAD noted that "Trustpilot's rating collects the reviews for each tax prep software company and creates a score that represents Trustpilot's determination of the comparative satisfaction of one company's consumers versus the consumer satisfaction of other companies, an analysis which is essentially comparative."

Next, NAD examined the advertiser's support for these claims. It noted that to support a claim that a product is Rated #1 within a broad product category, an advertiser should, as a general rule, compare itself to at least 85% of the relevant marketplace. Thus, to support a #1 rated claim based on customer reviews, the reviews should have covered 85% of the relevant market. Moreover, the customers surveyed should be representative of the broad base of customers who use the product.

Using these standards, NAD determined that TaxSlayer did not adequately substantiate its Rated #1 on Trustpilot claim. First, the population of online reviews that created the basis for Trustpilot's score was not representative of tax preparation software consumers because Trustpilot collects reviews from consumers that use programs from companies with which it has a business relationship at a much higher rate than those with which it does not. NAD noted that, because of this, "while TaxSlayer may be confident that its own reviews represent the opinions of its own consumers, it cannot say the same about the companies against which it is being compared."

Indeed, because of how Trustpilot collects reviews, the market leader (which does not have a business relationship with Trustpilot) had only received 15 reviews on the site, as compared to the over 2,500 TaxSlayer reviews. Moreover, Trustpilot did not adequately qualify its claim to make it clear to consumers that the ranking was based on this lopsided information. NAD noted that while the claim itself says that the claim is limited to companies in the tax prep software category on Trustpilot's website, it does not inform them that this ranking is not based on a representative sample of tax prep software consumers. The reviews also did not cover the requisite 85% of providers, as required for an unqualified #1 claim.

NAD had other issues about the reliability of Trustpilot's data. It noted that, to be reliable support for an advertising claim, only those reviews that are associated with verified purchases should be counted. Trustpilot, however, had no means to verify that the reviewers were legitimate consumers of the companies that they were reviewing – except those with which Trustpilot had a business relationship. Moreover, Trustpilot had no way of preventing consumers from submitting multiple reviews. (By contrast, see this case where the advertiser could substantiate that the reviews upon which it relied for its "over 10,000 5 star reviews" claim were verified and not double-counted.) And, finally, NAD was troubled by the fact that there was insufficient information in the record about how Trustpilot actually created its rankings based on customer review data because other metrics were considered using Trustpilot's proprietary "Trustscore".

Accordingly, NAD recommended that TaxSlayer discontinue using the claim #1 Rated on Trustpilot.

Case Report #6286

www.fkks.com

This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions