Definitions

As used in 940 CMR 38.00, the following terms shall have the following meanings: Advertisement, Advertising, Advertise. Any representation; (a) made in a newspaper, in a magazine, or other publication; (b) contained in any notice, handbill, sign, billboard, banner, poster, display, circular, pamphlet, catalog, or letter; (c) printed on or contained in any tag or label which is attached to or accompanies any Product; or (d) presented through or during the use of any electronic device or the use of a software application, including via telephone, text message, radio, television, or the Internet. Clearly and Conspicuously. Readily noticeable and readily understandable by ordinary consumers, including in all of the following ways, without limiting any other provisions of law: (a) In any communication that is solely visual or solely audible, the disclosure must be made through the same means through which the communication is presented. In any communication made through both visual and audible means, such as a television Advertisement, the disclosure must be presented simultaneously in both the visual and audible portions of the communication even if the representation requiring the disclosure is made in only one means. (b) A visual disclosure, by its size, contrast, location, the length of time it appears, and other characteristics, must stand out from any accompanying text or other visual elements so that it is easily noticed, read, and understood. (c) For an audible disclosure, including an audible disclosure that is accompanied by video or visual media, the disclosure must be delivered in a volume, speed, and cadence sufficient for ordinary consumers to readily hear and understand it. (Mass. Register #1543, 3/14/2025) (d) For any communication using an interactive electronic medium, such as through the Internet, a mobile application, or software, the disclosure must be unavoidable. (e) For any communication, the disclosure must use diction and syntax understandable to ordinary consumers and must appear in each language in which the representation that requires the disclosure appears. (f) The disclosure must not be contradicted or mitigated by, or inconsistent with, anything else in the communication to consumers. (g) The disclosure must comply with these requirements in each medium through which it is received, including all electronic devices and face-to-face communications. (h) When the representation or sales practice targets a specific audience, such as children orolder adults, requirements for comprehension by “ordinary consumers” must be satisfied both with the general audience and then separately with the targeted group. Government Charges. All fees or charges imposed on the transaction by a Federal, State, Tribal, or local government agency, unit, or department. Government Charges shall include fees or charges imposed on the transaction by a quasi-governmental entity operating pursuant to state statute. Government Charges covers only fees or charges imposed by the government or quasi-governmental entity on the transaction and does not encompass fees or charges that the government or quasi-governmental entity imposes on a seller and that the seller chooses (but is not legally required) to pass on to consumers. Negative Option Feature. A provision of a contract under which the consumer’s silence or failure to take affirmative action to reject a good or service or to cancel or non-renew an agreement is interpreted by the seller as acceptance or continuing acceptance of the offer including, but not limited to: (a) an automatic renewal; (b) a continuity plan; (c) a free-to-pay conversion or fee-to-pay conversion; or (d) a pre-notification negative option plan. Product. A good, whether tangible or intangible, or service available for Sale or included as part of a Sale for personal, family, or household use. For avoidance of doubt, Product shall include memberships, subscriptions, and dwelling units available for rent or lease Sale. The terms Sale or Sell includes lease, rent, or barter. Shipping Charges. The fees or charges that reasonably reflect the cost a seller incurs to send physical goods to a consumer, including through the mail, private mail and shipping services, or by freight. Targeted To. Employed to induce consumers in Massachusetts to enter into a Sale, regardless of whether a Sale is completed. Total Price. The maximum price a consumer must pay for a Product, inclusive of all fees, charges, or other expenses. Total Price shall include the maximum price a consumer must pay for any mandatory ancillary Product offered as part of the same transaction. Total Price may exclude Government Charges or Shipping Charges. Total Price may rely on the accuracy of information used to compute an aspect of pricing previously approved by a Commonwealth insurance or financial regulatory agency. A change in Total Price caused by a change in information used to compute an aspect of pricing previously approved by a Commonwealth insurance or financial regulatory agency will not constitute a violation of 940 CMR 38.00, as long as: (a) the updated Total Price is provided to the consumer as soon as is feasible; and (b) consumers are warned that there may be a change in Total Price on this basis at the time the Total Price is provided. Trial Offer. Any offer to a consumer to participate in, acquire, or use a Product without charge to the consumer, or at a reduced charge, for a rebate, or for only incidental costs such as Shipping Charges, for a limited time.