Advertising Law Blog

Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and Branding Department associate Morgan Spina published an article in Bloomberg Law entitled “Marketers Must Remain Vigilant Following ‘Click to Cancel’ Death.” In the article, Andy and Morgan analyze the Federal Trade Commision’s (FTC) “Negative Option Rule” known as the “Click to Cancel” Rule, a regulation requiring companies with subscriptions services to make cancellation as accessible and easy as signing up. They examine its history and the current controversy arising from the Rule being vacated. “With the final form of the rule being vacated,” Andy and Morgan write, “companies must reevaluate their compliance obligations and may find that many of the requirements set forth in the now-vacated rule are still applicable on both the state and federal levels.” Although the Eighth Circuit has struck down the Rule, marketers must still ensure that their subscription enrollment and cancellation paths are aligned with numerous federal and state requirements, which remain in effect and are actively being enforced. Indeed, the FTC continues to prosecute cases against companies pertaining to their subscription practices under existing laws and “[t]he class action bar continues to bring actions against marketers whose enrollment or cancellation practices fail to comply with applicable state laws. Andy and Morgan note that marketers offering subscriptions and automatic renewals nationally must continue to stay informed about constantly evolving state automatic renewal laws.