It was about this time last year that the CFPB issued similar guidance around digital comparison-shopping sites in the mortgage industry. That guidance was based on RESPA’s prohibition on steering to prevent operators from promoting the mortgage lender which paid the operator the most money. Many in the lead generation industry felt this was going to be limited to the mortgage vertical.

However, last week, the CFPB made clear abusive influencing of the consumer based on the compensation received by the operator is prohibited across all consumer financial services.

The CFPB’s new circular around digital comparison-shopping tools and lead generators is focusing on ensuring consumers have access to accurate information. The access to information should come without the tool they are using influencing the consumer’s decisions based on the compensation received by the operator of the tool.

The circular focuses on how certain acts or practices could be abusive because the operator of the tool “takes unreasonable advantage” of certain circumstances, including “the reasonable reliance by the consumer” of the tool.

For example, marketing the tool as a way for the consumer to “find their best match” or other messaging which confers to the consumer that the tool is acting “in the consumer’s best interests” can lead to the consumer reasonably relying on the impartiality of the tool. This reliance is the basis for potential abusive claims.

One of the most eye opening things in the circular is a definitive statement regarding bidding practices of websites:

“If a digital comparison-shopping tool operator or lead generator requires providers to bid or set bounties for leads, and that compensation scheme increases overall revenue while impacting placement on a comparison-shopping website or mobile app or impacting who receives leads, than can suggest that the operator or lead generator is violating the prohibition on abusive acts or practices.”

The Bureau states that this statement should be common sense because it means the operator is acting in its own interests and not the consumers’ interests. However, this is also common practice in the space by multiple companies who would be considered to be some of the “good actors” in the industry.

The circular is intended to “promote consistency” with enforcement. Meaning, this does not have an implementation period because the CFPB is putting everyone in the space on notice that this is the current law.