The Federal Trade Commission (FTC) has filed a lawsuit against a Nevada company and its affiliates for a variety of alleged deceptive practices in the sale of products online. FTC v. Health Formulas, LLC, et al, No. 2:14-cv-01649, complaint (D. Nev., Oct. 7, 2014). The lawsuit is the first one brought by the agency under the Restore Online Shoppers' Confidence Act (ROSCA), 15 U.S.C. § 8401 et seq., which Congress passed in 2010. ROSCA requires online sellers to disclose the details of transactions known as "negative options" to consumers up front. The FTC claims that the defendants violated ROSCA and several other federal statutes in their marketing and sales activities. It obtained a temporary restraining order (TRO) and a preliminary injunction (PI) against the defendants, and it is seeking a permanent injunction.
A "negative option" is defined as a transaction in which the consumer's failure to reject goods or services through some affirmative act constitutes acceptance of the seller's offer. 16 C.F.R. § 310.2(u). To put it another way, the customer accepts the goods or services and becomes obligated to pay for them by doing nothing. Negative option billing is common in online or mail-order clubs like Columbia House, which periodically send customers a CD or DVD and allow them a period of time to return it, after which they are billed for it.
Consumers have generally not been successful challenging negative option billing provisions in court if the contract clearly discloses the nature of the transaction, but many negative options are not so clearly explained. ROSCA requires online sellers to "clearly and conspicuously disclose...all material terms of the transaction" to the consumers before obtaining their billing information in online sales and marketing. 15 U.S.C. §§ 8402, 8403.