On November 4, 2015, the Senate Commerce Committee held a hearing exploring the impact of non-disparagement clauses in form contracts.

The Senate Commerce Committee received testimony that California has enacted a law to bar such clauses in non-negotiable form contracts.

The Committee also learned that the FTC has brought an enforcement action against one company, alleging, inter alia, that the firm's threats to enforce a gag provision against consumers to stop them from posting negative reviews and testimonials online constitute an unfair trade practice in violation of section 5 of the FTC Act.

[2] Despite the persuasive rationale of these judicial opinions, the Commerce Committee nevertheless felt that federal legislation was necessary to eliminate any ambiguity over the enforceability of non-disparagement clauses.

[4] In August 2018, the FTC brought its first case charging violations of the Consumer Review Fairness Act against the marketers behind a purported money-making promotion called Sellers Playbook.