Key Updates

  • The Federal Trade Commission (FTC) settled with internet phone service provider Vonage for allegedly using dark patterns to make it difficult for customers to cancel their phone service, charging unnecessary fees, and continuing to charge customers who had canceled their service. Dark patterns are design practices – often for a website or software app – that harm consumers, typically by manipulating or tricking them into making choices that they might not otherwise have made.
  • Under the settlement terms, Vonage is required to obtain express consent before charges, simplify its cancellation procedure, and pay $100 million in refunds.
Continue Reading Vonage To Pay $100 Million To Settle FTC Action Regarding Dark Patterns and Junk Fees

Key Update:

  • The FTC seeks comments on the effects of such fees and the methods companies may employ to impose them.
Continue Reading FTC Explores Potential Regulations To Prohibit “Junk” Fees

U.S. Senator Tammy Duckworth and U.S. Representative John Sarbanes have jointly introduced a new bill—the Websites and Software Applications Accessibility Act (the Act)—to address barriers that Americans with disabilities encounter when attempting to use websites and apps. The Act proposes to codify digital accessibility requirements for websites and apps, set schedules for continuous accessibility-related rulemaking to keep up with technological changes, and establish organizations to serve as support structures to facilitate digital accessibility. If enacted, the Act would fill a hole left open by the Americans with Disabilities Act (ADA), which has been interpreted by some (but not all) courts to apply to websites and apps.

Continue Reading New Bill Seeks To Establish Digital Accessibility Requirements for Websites and Apps

The Federal Trade Commission (FTC), on September 15, 2022, published Bringing Dark Patterns to Light (Dark Patterns Report), which stemmed from an FTC workshop. The Dark Patterns Report highlights common dark patterns—design practices that trick or manipulate consumers into making choices that they might not otherwise have made and that may cause harm. According to the FTC, dark patterns undermine the consumer’s ability to make informed decisions and are therefore misleading or deceptive.

The FTC documented what it considered dark patterns in a variety of online businesses, including in cookie consent banners, apps aimed at children, and subscription sales. According to the Dark Patterns Report, four common tactics are:

  • Design elements that induce false beliefs. These include ads made to look like editorial content, false claims that other shoppers are currently viewing the same product to encourage a purchase, and paid consumer review websites claiming to be impartial.
  • Design elements that lead to unauthorized charges. These include techniques that trick someone into paying for products or services they did not want or intend to buy, free trials followed by an unexpected subscription, and hard-to-cancel recurring subscriptions.
  • Design elements that hide or delay disclosure of material information. These include concealing key terms and material information, including hidden fees, or only disclosing mandatory fees at the end of the purchasing process.
  • Design elements that obscure or subvert privacy choices. These include techniques that dupe consumers into sharing data by disguising options for privacy settings or presenting hard-to-understand language when seeking consent to share, collect, and use personal data.

The FTC stated that it “will continue to take action” against companies that deploy dark patterns. In light of the FTC’s ongoing attention towards the issue, brands should carefully assess their websites and ads with their marketing, design, and legal teams.

Key Update:

  • The Federal Trade Commission (FTC) will host a virtual event on October 19, 2022, titled “Protecting Kids From Stealth Advertising in Digital Media.” The FTC is also seeking public feedback on how digital advertising and marketing affect children.
  • The Children’s Advertising Review Unit (CARU) of BBB National Programs issued a compliance warning reminding advertisers that the Self-Regulatory Guidelines for Children’s Advertising (Advertising Guidelines) apply to advertising directed to children in the metaverse.
  • Brands should be aware of this increased scrutiny by the FTC and CARU when engaging in advertising to children in digital media.
Continue Reading FTC and CARU Target Advertising to Children in the Digital Age

Key Takeaways:

  • These two cases are the latest in an ongoing push by the FTC to curb false and deceptive “Made in USA” or COVID-19-related representations by individuals capitalizing on a pandemic-fueled demand for American-made products.
Continue Reading Sticker Shock: FTC Enforces “Made in USA” Labeling Rule

The U.S. Department of Justice (DOJ) recently announced its intention to adopt rules setting forth web accessibility standards for state and local government entities, which are regulated under Title II of the Americans with Disabilities Act (ADA). If adopted, the rules would be the first of their kind under the ADA. The publication of this announcement may portend future action by the DOJ to adopt web accessibility requirements under Title III of the ADA, which covers a wide range of private businesses that provide goods and services to the public.

Continue Reading Justice Department to Issue First-Ever Rules on Web Accessibility Under the ADA

On June 3, 2022, the FTC made a request for comments about .com disclosures, including the increased use of dark patterns, manipulative user interface design, and other forms of digital deception that pose unique risks to consumers online and in the mobile space. The FTC is considering updating and reissuing its guidance document “Dot Com Disclosures: Information about Online Advertising,” last revised in March 2013.

Continue Reading <strong>FTC Seeking Public Input to Modernize Digital Advertising Guidance</strong>

In a 5-4 decision, the U.S. Supreme Court vacated the U.S. Court of Appeals for the Fifth Circuit’s stay of a temporary injunction in NetChoice, LLC v. Paxton, a closely watched case involving a novel Texas law purporting to bar “social media platforms” from engaging in “viewpoint” discrimination. The majority did not issue a written opinion, but Justice Samuel Alito authored a dissent that was joined by Justice Clarence Thomas and Justice Neil Gorsuch. The May 31, 2022, ruling is a win for the world’s largest online social media platforms, albeit a temporary one. The decision reinstates a temporary injunction barring the Texas attorney general from enforcing the Texas law, known as H.B. 20. The decision does not prevent users from suing covered platforms under H.B. 20’s private right of action.

This update summarizes the Texas law, the history of the litigation leading to the Supreme Court’s decision, and the Supreme Court’s decision yesterday. It also briefly forecasts the near future for state and private enforcement of H.B. 20.

Read the full update here.

We are proud to announce that Chambers & Partners has recognized Perkins Coie’s Advertising: Transactional & Regulatory Nationwide practice as one of the premier practices in the field.

Partner Jason Howell was also ranked again in the 2022 edition of Chambers USA: America’s Leading Lawyers for Business in the Nationwide Advertising: Transactional & Regulatory space.

London-based Chambers & Partners publishes directories that assess and rank the world’s leading attorneys. The Chambers USA rankings result from extensive surveys and interviews of in-house counsel and leading law firm partners.