Collapse to view only § 8401. Findings; declaration of policy
- § 8401. Findings; declaration of policy
- § 8402. Prohibitions against certain unfair and deceptive Internet sales practices
- § 8403. Negative option marketing on the Internet
- § 8404. Enforcement by Federal Trade Commission
- § 8405. Enforcement by State attorneys general
§ 8401. Findings; declaration of policy
The Congress finds the following:
(1) The Internet has become an important channel of commerce in the United States, accounting for billions of dollars in retail sales every year. Over half of all American adults have now either made an online purchase or an online travel reservation.
(2) Consumer confidence is essential to the growth of online commerce. To continue its development as a marketplace, the Internet must provide consumers with clear, accurate information and give sellers an opportunity to fairly compete with one another for consumers’ business.
(3) An investigation by the Senate Committee on Commerce, Science, and Transportation found abundant evidence that the aggressive sales tactics many companies use against their online customers have undermined consumer confidence in the Internet and thereby harmed the American economy.
(4) The Committee showed that, in exchange for “bounties” and other payments, hundreds of reputable online retailers and websites shared their customers’ billing information, including credit card and debit card numbers, with third party sellers through a process known as “data pass”. These third party sellers in turn used aggressive, misleading sales tactics to charge millions of American consumers for membership clubs the consumers did not want.
(5) Third party sellers offered membership clubs to consumers as they were in the process of completing their initial transactions on hundreds of websites. These third party “post-transaction” offers were designed to make consumers think the offers were part of the initial purchase, rather than a new transaction with a new seller.
(6) Third party sellers charged millions of consumers for membership clubs without ever obtaining consumers’ billing information, including their credit or debit card information, directly from the consumers. Because third party sellers acquired consumers’ billing information from the initial merchant through “data pass”, millions of consumers were unaware they had been enrolled in membership clubs.
(7) The use of a “data pass” process defied consumers’ expectations that they could only be charged for a good or a service if they submitted their billing information, including their complete credit or debit card numbers.
(8) Third party sellers used a free trial period to enroll members, after which they periodically charged consumers until consumers affirmatively canceled the memberships. This use of “free-to-pay conversion” and “negative option” sales took advantage of consumers’ expectations that they would have an opportunity to accept or reject the membership club offer at the end of the trial period.
(Pub. L. 111–345, § 2, Dec. 29, 2010, 124 Stat. 3618.)
§ 8402. Prohibitions against certain unfair and deceptive Internet sales practices
(a) Requirements for certain Internet-based salesIt shall be unlawful for any post-transaction third party seller to charge or attempt to charge any consumer’s credit card, debit card, bank account, or other financial account for any good or service sold in a transaction effected on the Internet, unless—
(1) before obtaining the consumer’s billing information, the post-transaction third party seller has clearly and conspicuously disclosed to the consumer all material terms of the transaction, including—
(A) a description of the goods or services being offered;
(B) the fact that the post-transaction third party seller is not affiliated with the initial merchant, which may include disclosure of the name of the post-transaction third party in a manner that clearly differentiates the post-transaction third party seller from the initial merchant; and
(C) the cost of such goods or services; and
(2) the post-transaction third party seller has received the express informed consent for the charge from the consumer whose credit card, debit card, bank account, or other financial account will be charged by—
(A) obtaining from the consumer—
(i) the full account number of the account to be charged; and
(ii) the consumer’s name and address and a means to contact the consumer; and
(B) requiring the consumer to perform an additional affirmative action, such as clicking on a confirmation button or checking a box that indicates the consumer’s consent to be charged the amount disclosed.
(b) Prohibition on data-pass used to facilitate certain deceptive Internet sales transactions
(c) Application with other law
(d) DefinitionsIn this section:
(1) Initial merchant
(2) Post-transaction third party sellerThe term “post-transaction third party seller” means a person that—
(A) sells, or offers for sale, any good or service on the Internet;
(B) solicits the purchase of such goods or services on the Internet through an initial merchant after the consumer has initiated a transaction with the initial merchant; and
(C) is not—
(i) the initial merchant;
(ii) a subsidiary or corporate affiliate of the initial merchant; or
(iii) a successor of an entity described in clause (i) or (ii).
(Pub. L. 111–345, § 3, Dec. 29, 2010, 124 Stat. 3619.)
§ 8403. Negative option marketing on the Internet
It shall be unlawful for any person to charge or attempt to charge any consumer for any goods or services sold in a transaction effected on the Internet through a negative option feature (as defined in the Federal Trade Commission’s Telemarketing Sales Rule in part 310 of title 16, Code of Federal Regulations), unless the person—
(1) provides text that clearly and conspicuously discloses all material terms of the transaction before obtaining the consumer’s billing information;
(2) obtains a consumer’s express informed consent before charging the consumer’s credit card, debit card, bank account, or other financial account for products or services through such transaction; and
(3) provides simple mechanisms for a consumer to stop recurring charges from being placed on the consumer’s credit card, debit card, bank account, or other financial account.
(Pub. L. 111–345, § 4, Dec. 29, 2010, 124 Stat. 3620.)
§ 8404. Enforcement by Federal Trade Commission
(a) In general
(b) Penalties
(c) Authority preserved
(Pub. L. 111–345, § 5, Dec. 29, 2010, 124 Stat. 3620.)
§ 8405. Enforcement by State attorneys general
(a) Right of action
(b) Notice to Commission required
(c) Intervention by the Commission
The Commission may intervene in such civil action and upon intervening—
(1) be heard on all matters arising in such civil action; and
(2) file petitions for appeal of a decision in such civil action.
(d) Construction
Nothing in this section shall be construed—
(1) to prevent the attorney general of a State, or other authorized State officer, from exercising the powers conferred on the attorney general, or other authorized State officer, by the laws of such State; or
(2) to prohibit the attorney general of a State, or other authorized State officer, from proceeding in State or Federal court on the basis of an alleged violation of any civil or criminal statute of that State.
(e) Limitation
(Pub. L. 111–345, § 6, Dec. 29, 2010, 124 Stat. 3621.)