FTC To Increase Enforcement Against "Dark Patterns" Directed At Consumers

On October 28, the FTC issued a new enforcement policy statement warning companies against deploying "illegal dark patterns" that trick or trap consumers into subscription services, and often making websites difficult to navigate to find cancellation or refund options. The statement is intended to assist marketers by providing specific guidance on the FTC's interpretation of existing law as it applies to "negative option marketing" through deceptive sign up tactics, including unauthorized charges or ongoing billing that is impossible to cancel. The policy statement notes that "[n]egative option offers come in a variety of forms, but all share a central feature: each contains a term or condition under which the seller may interpret a consumer's silence or failure to take affirmative action to reject a good or service or to cancel the agreement as acceptance or continuing acceptance of the offer." Examples include automatic renewals, free trials that convert to pay