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Negative Option Marketing Roger A. Colaizzi racolaizzi@Venable.com +1 202.344.8051 Leonard Gordon llgordon@Venable.com +1 212.370.6252 Shahin O. Rothermel sorothermel@Venable.com +1 202.344.4550 Both the FTC and state attorneys general continue to scrutinize consumer advertising and marketing that uses a negative option or continuity plan approach. Negative option marketing can include pre- notification negative option plans, continuity plans, automatic renewals, and free-to-pay (or nominal fee-to-pay) conversions. The difference between continuing success and recurring FTC problems can be as simple as making clear and complete disclosures (e.g., prominent, stated clearly, placed where they will be read, and proximate to where consumers’ attention is likely to be focused), obtaining consumers’ affirmative consent to the offer, and then ensuring that refunds and cancellations are processed in accordance with disclosed policies. 48 / Venable