Advertising Law Tool Kit - Tenth Edition | 2022

Venable / 49 Marketers selling products or services on a negative option or continuity basis should consider these key questions: • Are the material terms of the offer disclosed in an understandable manner, including existence of the offer, the price, frequency of charges, how to cancel, and the cancellation deadline? • Are the disclosures clear and conspicuous, especially on mobile devices? • Are the disclosures made before the consumer agrees to buy and enroll? • Has the consumer indicated in a meaningful way that he or she understands and affirmatively consents to the negative option offer, not just to the trial offer? • Are you sending post‑transaction confirmations? • Are you complying with laws requiring notice and separate consent to the trial or free-to-pay conversion, if they apply to your offer? • Is there a convenient and effective way to cancel that is just as simple as enrolling in the program? • Do you provide a web-based cancellation mechanism for customers who enroll online? • Is the company honoring its cancellation and refund policies? • Is the company sending renewal reminders to customers enrolled in annual memberships? • Are your customer service representatives complying with your procedures for providing clear and conspicuous disclosures, obtaining affirmative consent to the offer, and honoring the company’s cancellation and refund policies? • Is the company receiving complaints from consumers, the BBB, or state AGs that consumers do not understand that they are enrolling in the program, do not understand the amount or frequency of recurring charges, or are having a difficult time cancelling? If so, you need to look at your practices.