Have you ever been offered a free product or special discount just as you are about to provide your credit card information to make an online purchase? Did you later notice recurring charges popping up on your monthly credit card statements from an unknown company? As shopping over the Internet has become more popular, millions of unwary consumers over the last few years have been tricked by an online marketing tactic that brought in more than a billion dollars in recurring credit card charges.
Disclosures hidden in small print often kept people from realizing that by clicking “yes” for a special deal, they had agreed to allow the company they were shopping with to “data pass” credit card information and enroll them in billable services provided by “post-transaction third party sellers” (a term for companies that sell goods or services online through another merchant after a consumer has initiated a transaction with the other merchant). In other cases, online retailers engaged in a practice called “negative option” sales, which automatically enrolled customers in these third-party programs unless the shopper “opted out”.
Congress passed a new law as it busily concluded its 111th Session meant to protect consumers from these online marketing abuses that was signed into effect by President Obama on December 29, 2010. While this new law’s enactment received little fanfare, it is important for both consumers and businesses to be aware of The Restore Online Shoppers Confidence Act [ROSCA], which now establishes legal rules that businesses and non-profits conducting financial transactions online must abide by.
ROSCA makes it unlawful for these post-transaction third party sellers to charge, or attempting to charge, a consumer for any good or service sold in an online transaction unless it accomplishes the following:
(1) Clearly discloses all of the material terms of the offer, including an accurate description of what is being sold, the cost, and provides notice they are not affiliated with the merchant the consumer initiated the transaction with;
(2) Receives express consent and billing information for the specific charge directly from the consumer.
ROSCA also regulates “negative option” online sales by requiring:
(1) Clear and conspicuous disclosures to consumers of all the terms of a transaction before obtaining their billing information;
(2) An informed and express consent before charging a consumer;
(3) A simple method for a consumer to cancel.
ROSCA authorizes the Federal Trade Commission and state Attorney Generals to bring enforcement actions against violations of the Act. ROSCA does not allow for private civil lawsuits against violators though, so consumer complaints must be directed to these law enforcement agencies. Complaints can be filed at http://www.ftccomplaintassistant.gov or http://www.michigan.gov/ag.
There may be Web sites that are operating in a previously legal manner that is now illegal. Now would be a good time for businesses that engage in online sales transactions and non-profit organizations that solicit donations or memberships through the Internet to take some time to review their operations, advertising, and marketing practices to ensure compliance and avoid any future liabilities.
Tim Burns is a Michigan licensed attorney whose law practice focuses on consumer protection advocacy, small business representation, contract law, probate matters, and criminal defense.
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