Advertising Law Tool Kit - Tenth Edition | 2022

48 / Venable The Federal Trade Commission (FTC), state attorneys general, and class action plaintiffs continue to scrutinize negative option and continuity offers. Negative option marketing can include pre-notification negative option plans, continuity programs, automatic renewals, and free-to-pay (or discounted price-to-pay) conversions. The key to success in avoiding investigations and liability can be as simple as making clear and complete disclosures (prominent, clearly explained, and placed where they will be read and where consumers’ attention is focused); obtaining consumers’ express, informed affirmative consent to the negative option offer; providing a simple cancellation mechanism; sending post-order confirmations and renewal reminders; and ensuring that refunds and cancellations are processed in accordance with disclosed policies. Negative Option and Continuity Marketing Roger A. Colaizzi rcolaizzi@Venable.com +1 202.344.8051 Shahin O. Rothermel sorothermel@Venable.com +1 202.344.4550 Leonard L. Gordon lgordon@Venable.com +1 212.370.6252