The Federal Trade Commission (FTC) may soon pass new rules that strengthen federal protections for consumers who purchase products or services that are automatically renewed. The FTC rule proposal on automatic renewals would impose strict requirements on companies that offer automatic renewal subscriptions, or negative options, to consumers. Federal statutes and rules typically refer to automatic renewals as “negative options” because the absence of any affirmative action by the customer is enough to justify the auto-renewal. In other words, silence or inaction by the consumer is construed as acceptance of the auto-renewal contract. The amended FTC rule would make it easier for consumers to cancel their auto-renewal subscriptions, and it would impose civil penalties on companies that violate federal law.
For more information about the proposed amendments to the FTC Rule on Automatic Renewals, keep reading this blog.
What Is the Federal Law on Automatic Renewals?
California consumer protection lawyers are familiar with California’s Automatic Renewal Law (ARL), which regulates businesses that offer auto-renewing subscriptions to consumers in the state. The federal analogue to the ARL is the Negative Option Rule, which has been in effect in every state for 50 years. The Negative Option Rule is enforced through Section 5 of the FTC Act. In this context, automatic renewals are called “negative options” because sellers are allowed to interpret a customer’s silence as implied acceptance of an auto-renewal offer.
There are some major limitations on the Negative Option Rule. For example, the federal law only regulates prenotification plans. This means that the law only applies to companies that attach auto renewals to customer agreements before the sale of products or services.
FTC Proposes Amendment to the Federal Rule on Automatic Renewals
The FTC has proposed amendments to the federal Automatic Renewal Law. The suggested changes to federal law would have a significant effect on many state laws, especially in states that do not already regulate auto-renewal subscriptions. Some of the specific regulations that would be modified or added to federal law under the rule change include:
- Mandatory upfront disclosures of auto-renewal plans.
- Penalties for company misrepresentations about auto-renewal plans.
- Obtaining consumer consent for enrolling in auto-renewal plans.
- Annual reminders about automatic renewals.
- Easier cancellation of auto-renewal plans.
Ultimately, the FTC will decide whether to approve or decline the proposed rule changes. The federal agency might also decide to make revisions and then open up the new amendment for public comments.
One of the biggest changes being proposed for federal law is to require businesses to disclose any auto-renewal terms in a way that ensures that customers will see the terms. The current federal law stipulates that businesses must place auto-renewal terms in “visual proximity” to a request for consent. By contrast, the new rules would require these disclosures to be “immediately adjacent,” or right next to, any text about customer consent so that the disclosures are easily noticeable or difficult to miss. In other words, companies won’t be able to hide the auto-renewal consent text.
Additionally, the proposed FTC rule calls for companies to disclose particular information before customers can legally consent to an automatic renewal plan:
- Will payments be recurring?
- What is the cost of the subscription, including the auto-renewals?
- When will the subscription first automatically renew, and on what dates or at what intervals thereafter?
- What is the deadline to cancel the subscription before it automatically renews?
- What is the process for canceling the subscription?
The amended FTC rules would require companies to provide this information for all types of transactions involving recurring contracts, not just those occurring online. That’s because the rules would apply to offers made on the internet, in print publications and advertisements, during telephone solicitations, and in person at brick-and-mortar retail stores.
Misrepresentations About Auto-Renewal Plans
California consumer fraud lawyers will tell you that the state’s false advertising laws impose severe restrictions on the sales practices of companies that do business in the state. Companies that violate these laws may be subject to both civil liability and criminal penalties for egregious conduct. The proposed FTC rules would go a long way toward catching up with California’s regulations of companies that offer auto-renewal plans by applying federal regulations to misrepresentations about the entire sale agreement. For instance, the federal law would explicitly bar companies from misrepresenting a material fact related to any part of a transaction involving an automatically renewing subscription, even if the misrepresentation has nothing to do with the auto-renewal.
Consumer Consent for Auto-Renewals
The proposed changes to FTC rules would include a requirement that companies obtain affirmative consent from consumers before an auto-renewal contract becomes legally binding. Importantly, the customer’s consent for auto-renewal terms would have to be separate and apart from their consent for the transaction or purchase itself. For example, the business would not be able to hide the auto-renewal agreement or otherwise confuse the customer into thinking that they are only agreeing to the original purchase. As set forth by the recommended FTC rules, the request for affirmative consent from the consumer for the auto-renewal subscription would likely have to be a “check box, signature, or other substantially similar method.”
Additionally, companies will need to maintain a record of the customer-provided consent for a period of at least three (3) years from the date on which the subscription was first approved, or for one (1) year after the subscription has been cancelled.
Annual Reminders About Auto-Renewals
The FTC rule amendment under consideration would require companies to send annual reminders to customers about any auto-renewing subscriptions that involve products or services other than physical goods. The reminder must be sent annually even if it is not a yearly subscription plan. Additionally, these annual reminders would need to be in plain language that clearly identifies the product subscription or service being renewed, the dollar amount of the subscription, the frequency of the renewals, and the process for cancelling the subscription. The reminder would also have to be sent to the consumer in the same manner that they initially provided consent for the auto-renewal plan.
Cancellation of Auto-Renewals
The FTC rule changes would also require businesses to make it easy for customers to immediately cancel their auto-renewal subscriptions. For example, the cancellation option must use simple and easy-to-understand terms. The customer must also be given the ability to cancel through the same method they used to make the initial purchase, meaning that an online purchase could be cancelled on the company’s website.
Another requirement under consideration by the FTC is that companies would not be able to make any additional offers when a customer is attempting to cancel their auto-renewal subscription. These types of offers are known as “save attempts” because they tend to involve the business trying to save the auto-renewal subscription from cancellation. The idea here is that businesses should not be allowed to confuse customers with unclear terms or modifications that might dissuade them from cancelling their subscription.
FTC Rule on Auto-Renewals Regulates Business-to-Business Contracts
The California Automatic Renewal Law (ARL) is considered by many to be the strongest such law in the country, imposing requirements on businesses that go far beyond anything in current federal laws. In at least one way, however, the proposed FTC rule would actually go further than California’s ARL. That’s because the federal law would apply to both consumer transactions and business-to-business transactions.
FTC Enforcement of Federal Auto-Renewal Laws
Amendments to the federal law on automatic renewals would greatly strengthen the ability of the Federal Trade Commission (FTC) to enforce the law and crack down on violators. The FTC proposal would allow the government to seek restitution on behalf of consumers, as well as imposing civil penalties against companies that violate the law.
The federal law does not provide a civil remedy for individual consumers, but they can still seek financial compensation by filing a lawsuit based on state laws like the California Automatic Renewal Law (ARL). The federal law on auto renewals may also make it easier for consumers to file class action lawsuits under state law.
California’s Law on Automatic Renewal Offers
Companies that do business in California must follow stringent requirements when it comes to subscription renewals, including pre-transaction disclosures, affirmative consent, renewal notices, and cancellation policies. The purpose of the California Automatic Renewal Law (ARL) is to end the practice of ongoing charging of consumer credit cards without consumers’ explicit consent.
Some of the specific requirements that the California ARL imposes on companies include the following:
- Cancellations: Customers must be permitted to cancel their subscriptions online if they initially signed up online. Additionally, the cancellation process must be easy, with no steps that might obstruct or delay the process.
- Long-term subscriptions: If the subscription is for a period of at least one year before the initial renewal, businesses must send renewal notices to customers to ensure that they are informed. This notice needs to be sent at least 15 days before the subscription is scheduled to be renewed.
- Free gifts or promotions: If there was a free gift, trial subscription, or promotional discount involved, the company must send a notice of renewal to the customer before the trial period is over.
Call the California Consumer Fraud Attorneys at Tauler Smith LLP
The California consumer fraud attorneys at Tauler Smith LLP represent plaintiffs in civil suits filed in both state and federal courtrooms throughout the country. If you were charged for an automatically renewing subscription that you did not authorize, we can help you pursue restitution and monetary damages. Call 310-590-3927 or email us to discuss your case.