Recurring Fees and Trial Offers

In connection with any Advertising, marketing, solicitation, or offer of Sale that is Targeted To or results in a Sale in Massachusetts, the following shall constitute an unfair and deceptive practice under M.G.L. c. 93A, § 2: (1) For any Trial Offer, failing to disclose Clearly and Conspicuously and in writing, prior to the consumer’s acceptance of the Trial Offer, the following information: (a) any financial obligations that may be incurred as a result of accepting the Trial Offer; (b) identification of all Products for which the consumer may incur a financial obligation as a result of accepting the Trial Offer; (c) instructions as to the means by which the consumer may reject or cancel the Trial Offer before the consumer incurs a financial obligation; (d) the calendar date by which the consumer must reject or cancel the Trial Offer in order to avoid incurring a financial obligation; and (e) the calendar date on which the consumer will incur any financial obligation if the consumer fails to reject or cancel the Trial Offer. For any Product with a Negative Option Feature, failing to disclose Clearly and Conspicuously and in writing, prior to the consumer’s purchase of the Product, the following information: (a) that the consumer will be charged for the Product, or that charges will increase after any applicable trial period ends; (b) if applicable, that the charges will occur on a recurring basis, unless the consumer timely takes steps to prevent or stop such charges; and (c) instructions as to the mechanism by which the consumer may cancel the Negative Option Feature and avoid being charged for the Product, which shall comply with the requirements of 940 CMR 38.05(3). (3) For any Product with a Negative Option Feature, failing to provide a simple mechanism for a consumer to cancel the Negative Option Feature and avoid being charged for the Product and immediately stop any recurring charges. (a) The simple mechanism required by 940 CMR 38.05(3) must be at least as easy to access and use as the method the consumer used to initiate the Negative Option Feature. (b) The simple mechanism required by 940 CMR 38.05(3) must, at a minimum, be available through the same medium (such as Internet, telephone, mail, or in person) the consumer used to initiate the Negative Option Feature, and: 1. for Internet cancellation, the simple mechanism must be available through the same website or web-based application the consumer used to initiate the Negative Option Feature. 2. for telephone cancellation, the simple mechanism must be available through a telephone number, and all calls to this number must be answered promptly during normal business hours and not be more costly than the telephone call the consumer used to initiate the Negative Option Feature. 3. for in-person sales, the simple mechanism must be available through the Internet or through a telephone number in a manner compliant with 940 CMR 38.05(3)(b)1. and 2. in addition to, where practical, an in-person method similar to that used by the consumer to initiate the Negative Option Feature. (4) For any Negative Option Feature exceeding 31 days, failing to provide the consumer written notice within no more than 30 and no fewer than five calendar days prior to the date upon which the consumer must cancel in order to avoid incurring a subsequent financial obligation, which discloses Clearly and Conspicuously: (a) any financial obligations that may be incurred if the consumer fails to cancel the Negative Option Feature; (b) all Products for which the consumer may incur a financial obligation if the consumer fails to cancel the Negative Option Feature; (c) the mechanism by which the consumer may cancel the Negative Option Feature, which shall comply with the requirements of 940 CMR 38.05(3); (d) the calendar date by which the consumer must cancel the Negative Option Feature in order to avoid incurring a financial obligation; and (e) the calendar date on which the consumer will incur any financial obligation if the consumer fails to cancel the Negative Option Feature. (5) For any Negative Option Feature exceeding 31 days, failing to provide the written notice required under 940 CMR 38.05(4) through a medium substantially similar to that used by the consumer to initiate the Negative Option Feature, or through a commonly-used medium that is reasonably calculated to be seen and understood by an ordinary consumer, and that is affirmatively chosen by the consumer to be their preferred method of contact. Where the consumer initiated the Negative Option Feature through an in-person transaction, the written notice required under 940 CMR 38.05(4) must be provided through a commonly-used medium that is reasonably calculated to be seen and understood by an ordinary consumer, and that is affirmatively chosen by the consumer to be their preferred method of contact. (6) for any contract with a Negative Option Feature that is 31 days or less in duration, failing to provide written notice through a medium substantially similar to that used by the consumer to initiate the Negative Option Feature, or through a commonly-used medium that is reasonably calculated to be seen and understood by an ordinary consumer: (a) as required under 940 CMR 38.05(4); or (b) which discloses Clearly and Conspicuously, at least as frequently as the consumer is charged, the amount the consumer has been charged at auto renewal and instructions as to the mechanism by which the consumer may cancel the Negative Option Feature and avoid incurring additional charges for the Product.