The Federal Trade Commission (FTC) announced that it is seeking public comment on the Green Guides for the Use of Environmental Claims (Green Guides) as it considers potential updates. Last updated in 2012, the Green Guides serve as the FTC’s guidance for environmental marketing claims. The FTC is seeking public feedback on various green advertising topics, including whether to make the Green Guides independently enforceable and their interaction with other environmental marketing laws. The FTC is interested in hearing what industry stakeholders and consumers think about environmental claims generally, including those that are not currently covered by the guidelines.

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.

Key Update:

• The Federal Trade Commission (FTC) is considering rulemaking to curb unfair and deceptive fees.

• The FTC seeks comments on the effects of such fees and the methods companies may employ to impose them.

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.