June 5, 2023

Volume XIII, Number 156


June 04, 2023

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June 03, 2023

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FTC Increases Scrutiny of Negative Option Marketing

Retailers and service providers should take note: the Federal Trade Commission (FTC) is increasing its scrutiny of negative option marketing activity to combat unfair or deceptive practices related to subscriptions, memberships and other recurring-payment programs. The FTC issued today a notice of proposed rulemaking as part of its ongoing review of its 1973 Negative Option Rule—one of the primary guides for the FTC’s enforcement focus.

Negative option arrangements include “free trial” programs that automatically convert to paid subscriptions, and “automatic renewals” which allow sellers to unilaterally renew a consumer’s paid subscription when it expires unless the consumer affirmatively cancels by a certain date. The FTC considers these marketing practices a renewed enforcement priority.

Negative option marketing already requires special considerations, including specific disclosures of material terms, notice at specific intervals before automatic payments or renewals are initiated, prior notice of any changes to the terms of service with an opportunity to cancel, and easy and unimpeded cancellation processes under which compliant requests are timely honored. However, according to recent statements by the FTC, the current patchwork of federal laws and regulations does not provide brands with a consistent legal framework to follow. The proposed rule purports to address the gaps.

Among the several significant updates the FTC is proposing, the new rule would implement the following:

  • Requirement for simple cancellation mechanisms. The proposed rule would require sellers to make it at least as easy to cancel a service as it was to start it. For example, if consumers can sign up online, they must be able to cancel on the same website, in the same number of steps.

  • New requirements before making additional offers. The proposed rule would require sellers to obtain a consumer’s affirmative consent before pitching additional offers or modifications when the consumer tries to cancel. If the consumer does not consent upon request, the seller must immediately implement the cancellation process without further impediment.

  • New requirements regarding reminders. The proposed rule would require sellers to provide an annual reminder before automatically renewing a service subscription.

The FTC developed a Fact Sheet summarizing the proposed changes to the Negative Option Rule and is seeking comments from the public within 60 days of publication in the Federal Register. In the meantime, retailers and service providers should take note of the proposal and review their current negative option marketing activity to position their business for compliance in this area of renewed focus by the FTC.

Copyright © 2023, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XIII, Number 82

About this Author

Liisa Thomas, Sheppard Mullin Law Firm, Chicago, Cybersecurity Law Attorney

Liisa Thomas, a partner based in the firm’s Chicago and London offices, is Co-Chair of the Privacy and Cybersecurity Practice. Her clients rely on her ability to create clarity in a sea of confusing legal requirements and describe her as “extremely responsive, while providing thoughtful legal analysis combined with real world practical advice.” Liisa is the author of the definitive treatise on data breach, Thomas on Data Breach: A Practical Guide to Handling Worldwide Data Breach Notification, which has been described as “a no-nonsense roadmap for in-house and...

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Jason provides strategic business counseling on intellectual property and advertising issues, and has extensive trial and appellate experience in copyright, trademark, trade secret, patent and false advertising cases. As lead trial lawyer, he has tried cases before juries in the Eastern, Northern and Southern Districts of Texas to verdict. Outside of Texas Jason has...

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