The term “negative option” generally references subscriptions, automatic renewals, continuity plans, or other programs where consumers continue to be charged unless they cancel.

However, a recent New York federal court held that unless a consumer unchecks a box, a one-time shipping protection fee that is automatically added to that consumer’s cart can also be a “negative option” under ROSCA.

The decision could significantly expand the reach of ROSCA, both by applying the law to a one-time add-on fee and by giving private plaintiffs a potential avenue to pursue alleged ROSCA violations under California law. The ruling could have broader consequences for common e-commerce checkout practices that require consumers to affirmatively decline optional charges.

Continue Reading One-Time Shipping Protection Fee May Trigger ROSCA, Court Rules: A Fast VAST Update

A Utah federal judge recently dismissed Xlear, Inc.’s lawsuit challenging the Federal Trade Commission’s (FTC) long-standing requirement that advertisers substantiate health-related claims, finding that Xlear’s challenge was not ripe for judicial review. Because Xlear could not identify a final agency action that had a concrete impact on Xlear’s advertising, the court concluded that Xlear’s dispute was hypothetical and based on “abstract disagreements.”

As previously discussed, Xlear argued that the FTC’s substantiation standard exceeds the plain language of Sections 5 and 12 of the FTC Act and that the Supreme Court’s decision in Loper Bright—scaling back court deference to agency interpretations of statutes—undermined prior decisions interpreting the FTC Act to impose the substantiation requirement. The court, however, refused to reach the merits of Xlear’s challenge and dismissed the case without prejudice for lack of subject-matter jurisdiction.

Although the decision leaves the FTC’s existing substantiation framework intact, it does not resolve the broader question of whether that framework exceeds the agency’s statutory authority. Xlear’s Loper Bright argument may ultimately prove more consequential in a future FTC enforcement action, as courts continue to grapple with the scope of the agency’s authority and the deference owed to its interpretation of the FTC Act.

Continue Reading Xlear Challenge to FTC Health Claims Substantiation Standard Dismissed

Junk fee litigation has, until recently, been largely a consumer-facing story: diners, online shoppers, and eventgoers challenging the “service,” “processing,” and “convenience” fees that appear at checkout. A new proposed class action filed in North Carolina turns that narrative around. Specifically, a proposed class of North Carolina businesses recently filed a complaint alleging that their payment processors systematically charged them “junk fees” totaling almost $100 every month.

Merchants have been suing their processors and acquirers over undisclosed or misdescribed fees for decades, typically through breach of contract and unfair trade practices claims. What is new here is the “junk fee” label itself, borrowed from the consumer pricing-transparency movement, and the question it raises: Can the wave of state “total price” and junk fee statutes built for consumer transactions give merchants an additional, and potentially more powerful, tool to challenge the fees their own processors charge them?

Continue Reading Merchants Take the “Junk Fee” Fight to Their Payment Processors

Nearly every automatic renewal article gives companies the same advice: make your disclosures clear and conspicuous, obtain affirmative consent, send acknowledgment notices, and offer a simple cancellation mechanism.

This advice is correct, but it’s also incomplete.

Venable’s Autorenewal Solutions Team (VAST) has spent years defending companies in automatic renewal investigations and class actions. That experience has taught us that many of the biggest legal risks don’t hinge on the wording of the checkout page.

Continue Reading Automatic Renewal Compliance: What Lawyers Aren’t Telling You About Your Biggest Legal Risks

Within the last few months, two federal courts in Texas and California have blocked separate state product-labeling laws. In February, a court halted a Texas requirement that certain foods must carry a government-scripted health warning. And earlier this month, a court in California enjoined the state’s “Truth in Recycling” law, which would have restricted when packaging could be labeled as recyclable.

Together they signal that courts are increasingly willing to scrutinize state labeling mandates under the First Amendment, a welcome development for consumer-packaged goods (CPG) companies navigating a growing patchwork of state rules.

Continue Reading Consumer-Packaged Goods Companies Gain Ground Against State Labeling Mandates

The legal battles over loot boxes continue, with gaming companies vigorously defending the use of randomized in-game rewards against allegations that they constitute unlawful gambling.

In a closely watched case pending in the U.S. District Court for the Western District of Washington, lawyers for plaintiff-gamers have urged the court to reject Valve Corporation’s motion to dismiss a proposed class action alleging that the company’s loot box system violates Washington gambling laws.

The dispute highlights the continuing uncertainty surrounding one of the gaming industry’s most controversial monetization practices and comes amid increasing regulatory attention in the United States and abroad.

Continue Reading Loot Box Litigation Intensifies as Valve Fights Gambling Claims

Last week, the Seventh Circuit severely narrowed the Telephone Consumer Protection Act’s (TCPA) application to text messages, following several district court decisions. The court held that private litigants cannot sue under the Do Not Call prohibitions when a sender fails to honor opt-out requests for unwanted marketing text messages.

The decision may limit one avenue of TCPA liability, but it does not simplify compliance. Instead, the Seventh Circuit’s departure from other appellate courts adds uncertainty for businesses and could accelerate Supreme Court review of whether and how the TCPA applies to text messages.

In Steidinger v. Blackstone Medical Services, the Seventh Circuit concluded that although the Federal Communications Commission (FCC) interpreted the Do Not Call provision to apply to text messages, Congress limited 227(c)(5)’s private remedy to repeated telephone calls, not text messages.

Continue Reading Seventh Circuit Creates New Uncertainty for TCPA Text Message Compliance

On June 29, 2026, the Supreme Court held in a 6-3 decision in Trump v. Slaughter that the Federal Trade Commission (FTC) Act’s for-cause removal provision is unconstitutional. The Court overruled Humphrey’s Executor v. United States and held that statutory restrictions on the President’s ability to remove FTC Commissioners violate the separation of powers.

The separation of powers is a fundamental tenet of our democracy. The United States Constitution diffuses the authority of the federal government across three branches, each with a distinct set of constitutional responsibilities. Exercising its legislative authority, Congress has created administrative agencies—federal organizations housed in the executive branch who act with power delegated from Congress to promulgate rules, investigate violations of those rules, and carry out adjudications. For decades, Congress made choices about not only the structure of those agencies, but also the degree of direct presidential control over agency leadership.

Continue Reading Supreme Court Overrules Humphrey’s Executor and Permits At-Will Removal of FTC Commissioners

States continue to devote significant attention to consumer protection and pricing transparency issues. During the 2025-2026 legislative cycle, legislatures across the country introduced, debated, enacted, and, in some cases, rejected legislation relating to surcharging, “junk fees,” interchange fees, and related pricing practices. Although the status of individual bills varies and legislative sessions have now concluded in many states, these measures provide a useful illustration of the approaches states are considering and signal that similar proposals are likely to continue emerging in future legislative sessions. As a result, companies should remain diligent in monitoring developments across jurisdictions to ensure their awareness of and compliance with applicable laws and regulations.

With respect to surcharging, states have pursued a variety of approaches, with some considering outright prohibitions and others seeking to impose limits or conditions on surcharge practices. For example, New Jersey considered legislation (NJ AB4807) that would prohibit surcharging altogether. Other states explored permitting surcharges while limiting the amount that may be charged. In Georgia (GA HB700) and Oklahoma (OK SB2132), lawmakers considered proposals that would restrict surcharge amounts by reference to merchants’ processing costs. In addition, some states examined legislation that would permit surcharging only where alternative payment methods not subject to surcharges are available. Examples include Illinois (IL SB1931) and Minnesota (MN SF3875). Finally, several states have focused specifically on debit card transactions. Louisiana recently enacted legislation (LA SB254) that prohibits retail businesses from imposing a surcharge on consumers who pay with a debit card and creates a private right of action for consumers harmed by violations of the Act. The Louisiana bill was signed by the governor and will become effective on August 1, 2026.

Continue Reading State Fee Regulation Trends: Surcharging, Junk Fees, UDAP, and Interchange Fees

As of June 9, 2026, New York requires certain advertisements that use artificial intelligence-generated human performers to include a disclosure informing consumers that the advertisement contains a synthetic performer.

What Counts as a Synthetic Performer?

Governor Hochul’s office described the measure as the “first-in-the-nation” law aimed at increasing transparency around the use of AI in advertising. The law applies to commercial advertisements that depict a “synthetic performer,” defined as a digitally created, reproduced, or modified asset generated through artificial intelligence or other software that creates the impression of a human performer, but is not recognizable as any actual person.

Continue Reading New York AI Advertising Disclosure Requirement Now in Effect