FTC Issues New Policy Statement on Dark Patterns

The Federal Trade Commission has published a new policy statement warning companies “against deploying illegal dark patterns that trick or trap consumers into subscription services” and free-to-pay trials. The policy statement sets out guidance on what constitutes disclosure of “material terms” in a clear and conspicuous manner, how “negative option” sellers can attain express informed user consent, and how to provide simple, reasonable means for consumers to cancel contracts and subscriptions. The Commission’s policy statement follows numerous complaints from consumers and advocacy organizations, including EPIC, demonstrating “prevalent, unabated consumer harm in the marketplace” from dark patterns. Earlier this year, EPIC filed a complaint with the D.C. Attorney General highlighting how Amazon employs dark patterns when customers attempt to cancel their Amazon Prime subscriptions, effectively preventing them from ending their memberships, charging users recurring fees, and continuing to collect, retain, and use the personal data of misdirected subscribers. EPIC also signed onto a coalition letter urging the FTC to investigate Amazon’s use of dark patterns.