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CFPB Circular Outlines Enforcement of “Dark Patterns”

CFPB green logoThe guidance, in coordination with Federal Trade Commission policies, focuses on how online practices can violate consumer financial protection law.

01/19/2023 1:45 P.M.

2 minute read

The Consumer Financial Protection Bureau and Federal Trade Commission are partnering on enforcement of “dark patterns:” deceptive online practices that make it difficult for consumers to stop recurring charges or understand terms and conditions.

For its part in the enforcement, the CFPB issued a new circular clarifying that companies with subscription services that automatically renew unless the consumer cancels and trial marketing promotions starting with a reduced fee that increases over time, classified as “negative options” by the bureau, are required to comply with consumer financial protection law, according to a news release from the CFPB.

Last spring, CFPB Director Rohit Chopra announced the new enforcement strategy known as “Consumer Financial Protection Circulars” that will be issued to the broad set of government agencies responsible for enforcing federal consumer financial law, ACA International previously reported.

The circulars will be “policy statements under the Administrative Procedure Act and will be released publicly to increase transparency for the benefit of the public and regulated entities,” according to the CFPB.

The FTC, meanwhile, has been tracking dark patterns for years. In October 2021, it issued a policy statement outlining requirements for companies’ sign-up processes including clear disclosures about products and subscriptions, obtaining consumers’ express informed consent and providing easy cancellation options.

In the circular on dark patterns, the CFPB drew from its own past enforcement cases and the FTC’s policy statement to show examples of unlawful actions by companies that have used dark patterns “and other manipulative tactics to trick consumers into paying recurring charges for products and services they do not want.”

“Deceptive practices that seek to trap consumers into subscriptions they don’t want are a violation of the law,” said Samuel Levine, director of the FTC’s Bureau of Consumer Protection. “Today’s circular puts companies on notice that there is a government-wide effort to stop these manipulations.”

According to the CFPB, companies offering “negative option programs” could violate the Consumer Financial Protection Act’s prohibition on unfair, deceptive, or abusive acts or practices by:

  • Failing to disclose, clearly and conspicuously, the material terms of the negative option offer to the consumer.
  • Failing to obtain the consumer’s informed consent.
  • Misleading consumers about or preventing them from canceling a subscription or program.

The CFPB previously released circulars on dispute investigations, collections associated with nursing home bills and data security expectations.

ACA’s Take

With the CFPB’s release of this guidance, it’s important to verify with your creditor-clients that they’re aware of it and have compliance measures in place. You don’t want to find yourself collecting a debt that’s invalid because a creditor-client was subject to an enforcement action or being involved in the enforcement action because of a miscommunication with your clients.

Learn more about dark patterns and what regulators are looking for in ACA’s report: Dark Patterns: What You Need to Know and on a recent episode of the ACA Huddle: Dark Patterns and Commercial Surveillance.

If you have executive leadership updates or other member news to share with ACA, contact our communications department at [email protected]. View our publications page for more information and our news submission guidelines here.

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