Consumer Protection

Subscribe to Consumer Protection

Not to be left behind by other regulators, the California Privacy Protection Agency (CPPA) recently issued an enforcement advisory on “dark patterns” in the context of the notice and consent required under the California Consumer Privacy Act (CCPA). As we’ve previously discussed, dark patterns are a subset of “deceptive marketing” and are also known as “deceptive design patterns.” The Federal Trade Commission (FTC) released a report in 2022 outlining the various methods companies employ, such as “making it difficult for consumers to cancel subscriptions or charges, burying key terms or junk fees, and tricking consumers into sharing their data.”

The scrutiny of dark patterns has only intensified since then, and states like California are jumping in. The CCPA defines dark patterns as “[u]ser interfaces or choice architectures that have the substantial effect of subverting or impairing a consumer’s autonomy, decision making, or choice” and says consumer agreement obtained through dark patterns does not constitute consent. The CPPA advises companies seeking to obtain consumer information to use language that is easy to understand and to avoid technical or legal jargon.Continue Reading California Privacy Protection Agency Warns Businesses Against “Dark Patterns” and Urges “Symmetry in Choice”

Last month, the Federal Trade Commission (FTC) and U.S. Department of Justice (DOJ) jointly hosted a public meeting of the interagency “Strike Force on Unfair and Illegal Business Practices.” The meeting was a continuation of an effort, initially announced by President Biden in March, to “strengthen interagency efforts to root out and stop illegal corporate behavior that hikes prices on American families through anti-competitive, unfair, deceptive, or fraudulent business practices,” according to a press release.

The August 1 meeting brought together a number of different agencies to discuss their actions to lower prices for Americans, including the FTC and the DOJ, the Consumer Financial Protection Bureau (CFPB), the U.S. Department of Transportation, the U.S. Department of Agriculture (USDA), the U.S. Department of Health and Human Services (HHS), the U.S. Securities and Exchange Commission (SEC), and the U.S. Federal Communications Commission (FCC).Continue Reading Federal Agencies Increase Focus on Pricing Enforcement

On August 14, the Federal Trade Commission (FTC) announced a final rule aimed at protecting American consumers against fake reviews and testimonials. The rule, approved through a 5-0 vote, comes after nearly two years of rulemaking proceedings on the topic. The FTC has said customer reviews play an important role in consumer decision making, and the rule follows in the steps of related cases and notices of penalty offenses brought and issued by the FTC against the use of fake reviews, as well as guidance the FTC has published on the use of endorsements and testimonials. This final rule now provides the FTC with a potentially powerful tool to punish businesses that knowingly violate it, and to seek consumer redress for violations of the rule.

The rule, which is set to be effective 60 days after its publication in the Federal Register, addresses the following practices:  Continue Reading Façade, Fraud: FTC Final Rule Banning Fake Reviews

This week, the Fifth Circuit Court of Appeals issued a stay of the Department of Transportation’s (DOT) price transparency and “junk fee” rule (the Rule or the Final Rule). The ruling effectively blocks the DOT from enforcing the Rule pending the legal challenge.

The DOT issued the Final Rule, “Enhancing Transparency of Airline Ancillary Service Fees,” in April 2024, and it took effect July 1, 2024. The Rule requires airline carriers and ticket agents to clearly disclose certain “ancillary service fees,” such as baggage fees and cancellation fees, to consumers before purchase. The DOT described the purpose of the Rule as helping consumers “to avoid surprise fees that can add up quickly and add significant cost to what may, at first, look like a cheap ticket.” The DOT rule was part of the Biden administration’s whole-of-government attack on “junk fees.”Continue Reading Fifth Circuit Grounds Department of Transportation’s Price Transparency and “Junk Fee” Rule

One of the questions that remains uncertain among looming federal and state “junk fee” and “drip pricing” bans in 2024 concerns the impact these rules will have on credit card surcharges. Surcharges are added to sale transactions by some retailers when the buyer uses a credit card to make a purchase. Is this a mandatory fee that must be incorporated in the total price under the new laws? Or does the consumer’s choice to use a credit card to pay make the convenience of paying by credit card an optional service or feature that need not be included in the advertised price?

We may need to wait for further clarification from regulators or a lawsuit to know how junk fee bans impact surcharging, but understanding the possible arguments and pitfalls may help you decide how you will address this question in the short-term. Contact us if you need guidance or advice on these junk fee bans or surcharge rules.Continue Reading Drip Pricing, Surcharging, and the Push for “Total Price” Disclosures

The Federal Communications Commission (FCC) and the Federal Trade Commission (FTC) agreed this week to cooperate and coordinate consumer protection efforts in enforcing the FCC’s reinstated “net neutrality” rules. The agencies stated in a Memorandum of Understanding that they will share legal, technical, and investigative expertise and experience in enforcing the rules.

The reinstated rules, adopted on April 25, formally reclassify internet service providers’ broadband services as “Telecommunications Services” under Title II of the Communications Act, rather than as a less-regulated Title I “Information service.” With this change in status, the FCC also reinstates specific proscriptive rules against blocking, throttling, or engaging in paid preference for certain network traffic, and re-adopts a “general conduct” standard barring unreasonable interference with consumers or providers that provide content and services.Continue Reading FCC and FTC to Cooperate in Enforcing Reinstated Net Neutrality Rules

Last month, the Supreme Court of Maryland delivered a pivotal ruling defining the scope of the Maryland Telephone Solicitations Act (MTSA), holding that the act extended to inbound calls initiated by consumers who engaged with merchant advertisements. The Maryland Supreme Court also confirmed that the Maryland Public Service Commission can enforce the MTSA against covered entities.

The case, In the Matter of Smart Energy Holdings, LLC D/B/A SmartEnergy, originated in response to customer complaints to the Public Service Commission’s Consumer Affairs Division (CAD) alleging that their bills were excessive and that they were unable to cancel their service with SmartEnergy, a provider of 100% green energy. After proceedings before an administrative law judge, the Public Service Commission held:Continue Reading The Power of Customer Calls: Maryland Supreme Court Upholds Public Service Commission’s Interpretation of the Maryland Telephone Solicitations Act

On Tuesday, February 13, the Federal Trade Commission (FTC) held an informal hearing regarding the Proposed Rule on the Use of Consumer Reviews and Testimonials. Three interested parties each had the opportunity to submit 30 minutes of oral commentary on the proposed rule and generally voiced concerns about the rule’s ability to address the issues surrounding consumer reviews.

The FTC’s proposed rule seeks to prohibit certain unfair or deceptive acts involving consumer reviews and testimonials. Specifically, it would prohibit buying positive reviews, selling or obtaining fake reviews, suppression of negative reviews, and selling fake social media indicators. Perhaps most importantly, if the rule becomes final, the FTC would be able to seek civil penalties against those engaged in violative review and testimonial practices. Previously, the FTC has only been able to obtain injunctive relief when combating fake reviews, and would have to rely on state attorneys general to join a suit to obtain monetary relief.Continue Reading FTC Contemplates Rule Aimed at Combating Deceptive Consumer Reviews

Join us over the next few months as we spotlight select chapters of Venable’s popular Advertising Law Tool Kit, which helps marketing teams navigate their organization’s legal risk. Click here to download the entire Tool Kit, and tune in to the Ad Law Tool Kit Show podcast, to hear the authors of this chapter dive deeper into the issue of product safety and recalls in this week’s episode. 

On rare occasions, notwithstanding the best of engineering design and testing, a consumer product contains a manufacturing or design defect, or a failure of adequate instructions, that results in its being unsafe for use and a potential for causing bodily harm. This most often reveals itself when consumers bring the matter to the attention of a manufacturer, retailer, or direct-response marketer, or upon receipt of a notice from the Consumer Product Safety Commission (CPSC).Continue Reading Product Safety and Recalls: An Excerpt from the Advertising Law Tool Kit

If your business offers a loyalty program in conjunction with a gift card, you likely already know that Section 520-e of New York’s General Business Law took effect December 10, 2023. This new law gives consumers a set grace period to use their credit card reward points when certain changes (e.g., modification, cancellation, closure, or termination) are made to a “reward, loyalty, or other incentive program.”

Specifically, under the new law, “[i]f any credit card account or rewards program is modified, cancelled, closed or terminated,” the issuer must provide notice to the card holder as soon as possible, but no later than 45 days of the action. Then, unless the customer has engaged in fraud or misuse of the account, starting with the date on which the notice is sent, the holder shall have 90 days to redeem, exchange, or otherwise use any accumulated credit card points, subject to the availability of rewards.

The new provision defines “modification,” as one that has the effect of “eliminating points, reducing the value of points, affecting the ability of a holder to accumulate points, limiting or reducing rewards availability, limiting a holder’s use of points or the credit card account, otherwise diminishing the value of the rewards program or the credit card account to the holder or changing the obligations of the holder with respect to the rewards program or credit card account.”Continue Reading Reminder: New York’s Credit Card Reward and Loyalty Program Law Is Now in Effect