How-to guide: The Restore Online Shoppers’ Confidence Act – what is it and why does it matter (USA)

Introduction

This guide will assist in-house counsel and private practice lawyers understand how to comply with the Restore Online Shoppers’ Confidence Act (ROSCA), enacted to address ongoing consumer protection concerns around deceptive sales practices and data sharing in online retail. The guide sets out the background to implementation and what ROSCA does, considers the key prohibitions and disclosure requirements, and provides an overview of penalties and enforcement actions in the event of non-compliance.

In addition, the guide sets out general requirements when drafting a compliance program for ROSCA. The validity and enforceability of such compliance programs may vary among US jurisdictions. The discussion in this guide should be taken as a general statement of the laws applicable in most US jurisdictions. You are advised, however, to consult the local laws in your jurisdiction before drafting a compliance program of this type.

This guide covers:

ROSCA – protecting consumers online
Key prohibitions and disclosure requirements
Enforcement and penalties
Designing a ROSCA compliance program

This guide can be used in conjunction with the following How-to guides: Avoiding false or misleading advertising, Issues surrounding online advertising and Checklists: Online advertising directed to children, and Using product endorsements.

1.1 History of ROSCA

ROSCA was enacted in 2010 to establish Internet marketing regulations in online commerce to protect consumers.

The rationale for ROSCA implementation is set out in section 2:

Declaration of Policy, and Congress noted eight key drivers for the legislation, with consumer protection as the primary motivation.
The Internet is an important channel of commerce in the United States, accounting for billions of dollars in retail sales every year, used by over half of all American adults.
Consumer confidence is essential to the continued growth of online commerce, and consumers must be presented with clear, accurate information which gives reputable sellers an opportunity to fairly compete with one another for consumers’ business.
An investigation by the Senate Committee on Commerce, Science, and Transportation (the Committee) found abundant evidence that the aggressive sales tactics many companies use in online marketing were having a detrimental effect on consumer confidence in the Internet, resulting in harm to the American economy.
The Committee concluded that in exchange for ‘bounties’ and other payments, hundreds of online retailers and websites were sharing their customers’ billing information, including credit card and debit card numbers, with third-party sellers (ie, a seller who markets goods or services online through an initial merchant after a consumer has initiated a transaction with that merchant) through a process known as ‘data pass.’ This was a method of consumers unknowingly authorizing the transfer of their payment details to another online merchant for a separate sale online without having to re-enter payment details. These third-party sellers then used aggressive, misleading sales tactics to charge millions of American consumers for membership clubs the consumers did not want.
The membership club offers were made to consumers when they were in the process of completing their initial transactions on hundreds of websites. These third-party ‘post transaction’ offers were presented in such a way that consumers were deceived into thinking that the offers were part of the initial purchase, rather than a new transaction with a new seller.
As the third-party sellers acquired the consumers’ billing information from the initial merchant through a ‘data pass’ millions of consumers were unaware that they had been enrolled in and charged for membership clubs, such as book clubs or record clubs.
The use of a ‘data pass’ process violated the consumers’ beliefs that they were protected and could only be charged for a good or a service if they submitted their billing information for that specific good or service, including their complete credit or debit card numbers.
Further, these third-party sellers were using ‘free trial periods’ to enroll members and systematically charged consumers until the consumers canceled the memberships. This use of ‘free-to-pay conversion’ and ‘negative option’ sales again violated the consumers’ beliefs and took advantage of the consumers’ expectations that they would have an opportunity to accept or reject the membership club offer at the end of the trial period.

1.1.1 Purpose of the Act

The primary purpose of ROSCA is to protect consumers from ‘data passing.’ ROSCA also covers continuity or ‘negative option’ marketing. The term ‘negative option feature’ is defined by the FTC’s Telemarketing Sales Rule (TSR) (16 CFR Part 310) as a provision ‘under which the customer’s silence or failure to take an affirmative action to reject goods or services or to cancel the agreement is interpreted by the seller as an acceptance of the offer.’ The TSR prohibits deceptive telemarketing acts or practices including those involving negative option offers.

Negative option programs are widespread in the marketplace and can provide substantial benefits for sellers and consumers. At the same time, consumers suffer costs when marketers fail to make adequate disclosures, bill consumers without their consent, or make cancellation difficult or impossible. One example is a billing plan where the customer agrees to receive a service for an initial trial period and the customer is subsequently charged –without giving their additional consent to debit the payment – unless and until the customer explicitly cancels the service.

The FTC has published useful guidance on negative options: Negative options – make them a positive.

2.1 Prohibitions under ROSCA

The Act contains two primary prohibitions:

it prohibits and prevents Internet-based, post-transaction third-party sales; and
it imposes specific requirements on negative option features.

2.1.1 Internet-based, post-transaction third-party sales

Section 3 of ROSCA prohibits Internet-based, post-transaction third-party sales by making it unlawful for any post-transaction third-party seller to charge or attempt to charge a consumer’s credit card, debit card, bank account, or other financial account for any good or service sold over the Internet unless certain conditions are met.

This targets unscrupulous companies that undertake deceptive Internet sales practices by offering ‘post-transaction’ offers that are presented in a way that they appear to be part of the initial offer. When the unsuspecting consumer agrees to a ‘post-transaction’ deal, they are automatically enrolled in a subscription program.

For the purposes of ROSCA, a ‘post-transaction third-party seller’ is a person who:

sells, or offers for sale, any good or service on the Internet;
solicits the purchase of such goods or services through an initial merchant after the consumer has started a transaction with the initial merchant; and
is not the initial merchant or a subsidiary, affiliate or successor thereof.

Third-party seller required disclosures

ROSCA imposes disclosure requirements on third-party sellers engaging in post-transaction sales. These include a duty to ‘clearly and conspicuously’ (a term not defined in any regulation, but one which courts have stated is ‘necessarily contextual’) disclose to the consumer all material terms of the transaction, including:

a description of the goods or services being offered;
the fact that the post-transaction third party is not affiliated with the initial merchant and a clear explanation that this transaction is separate from the initial transaction. An initial merchant is defined under ROSCA as ‘a person that has obtained a consumer’s billing information directly from the consumer through an Internet transaction initiated by the consumer’ (see ROSCA section 3(d)(1), codified at 15 USC section 8402); and
the cost of the goods or services.

Express consent required

The post-transaction third-party seller must also have received the express informed consent for the charge from the consumer by:

obtaining from the consumer the full account number to be charged and the consumer’s name, address, and contact information; and
requiring the consumer to perform an additional affirmative action, like clicking on a confirmation button or checking a box indicating consent to the transaction and to be charged the amount disclosed.

2.1.2 Negative option features marketing

As noted at 1.1 above, negative options refer to an arrangement where goods or services are sent to you automatically and interpreted as accepted by you unless you take affirmative action eg, tell the seller that you do not want them or cancel the agreement.

Disclosure requirements for negative option features under ROSCA

Under the requirements of section 4 ROSCA, negative option marketing features, as defined above, are prohibited unless the seller:

conspicuously discloses all material terms of the transaction before getting billing information. This does not mean burying disclosures in the fine print; it means clearly and concisely disclosing material terms on a screen (see section 2.2.1 below);
obtains the consumer’s express informed consent before charging the consumer; and
provides a simple opt-out mechanism for a consumer to stop recurring charges on their credit card, debit card, or bank account, and to honor cancellation requests.

Examples of negative option marketing plans

In 2007, the Federal Trade Commission (FTC) hosted a workshop entitled ‘Negative Options: A Workshop Analyzing Negative Option Marketing’. The workshop brought together industry, consumer groups, and academics to discuss issues and marketing principles for businesses seeking to make negative options online. The workshop identified four types of plans which may fall within the negative option marketing category, and these are set out in more detail below.

Prenotification negative option plans

In a prenotification negative option plan, sellers send periodic notices to consumers offering goods in the form of a free trial offer (eg, magazine subscriptions or Internet services) or a special deal (eg, book or record clubs) where the club will tell you which book or CD they plan to send in advance and give you a chance to refuse. Trial period offers or special deal offers generally require the consumer to cancel the offer. If the consumer does not do so, the seller sends the goods and continues to charge the consumer.

Automatic renewals

In automatic renewal plans, the seller automatically renews a consumer’s subscription each time it expires and charges for it, until the consumer cancels the subscription. These are commonly found in mobile phone contracts or equipment leases. Automatic renewal provisions require you to tell a business that you do not want to renew your contract with them. If you do not do so, the contract will be renewed, and you will be tied in to continue making payments for the goods or services.

Continuity plans

A continuity plan is where the consumer initially agrees to receive periodic shipments of goods or provision of services, but then the seller continues to ship goods and bill the customer until the consumer cancels the agreement. These types of plans are common for grocery deliveries.

Free-to-pay or nominal-fee-to-pay offers

In a free-to-pay or nominal-fee-to-pay offer, sellers use free trial periods, or trial periods with a nominal fee, to initially attract the consumer. Then, after the trial period ends, the sellers automatically begin charging a fee (or higher fee) unless consumers affirmatively cancel or return the goods or services.

Example

A publisher offers unlimited access to its library of e-books free for a 30-day trial period. Customers must provide a credit card number when they sign up, and if they do not cancel their subscription before the free trial period has passed, their credit card is charged $20 per month for continued access.

In April 2023, the FTC proposed a negative option rule that would ‘implement new requirements to provide important information to consumers, obtain consumers’ express informed consent, and ensure consumers can easily cancel these programs when they choose.’ This applies to all four options, and the proposed rule will cover all forms of negative option marketing across all media including online, in person, mail or by telephone.

On October 16, 2024, the FTC finalized a significant update to its regulations regarding recurring payment programs, commonly known as subscriptions and memberships. This regulation, titled the ‘Click-to-Cancel’ Rule, was intended to modernize the 1973 Negative Option Rule. However, on July 8, 2025, the US Court of Appeals for the Eighth Circuit vacated the rule in its entirety, finding procedural defects in the FTC’s rulemaking process. See, Custom Communications, Inc., v FTC, No. 24-3137 (8th Cir July 8, 2025). As a result, there is currently no federal Click-to-Cancel rule in effect. Companies must continue to comply with ROSCA, the FTC Act (Section 5), the Telemarketing Sales Rule where applicable, and state automatic renewal laws.

However, the FTC has also alleged multiple violations of ROSCA by companies selling products and services without offering a clear cancellation option for automatically renewing subscriptions or by making cancellation overly difficult. This includes placing a cancellation button where it is hard to find, requiring users to go through multiple steps before the cancellation is accepted and saved, and delaying cancellation requests by requiring them to be reviewed by customer service. Most recently, Adobe was sued for hiding information about early termination fees and requiring consumers to go through a complicated cancellation process.

ROSCA and the ‘clear and conspicuous’ Telemarketing Sales Rule (TSR)

In enforcing the negative option rules of ROSCA, the FTC relies on the definitions in the TSR.

To comply with ROSCA, all material terms and conditions of any negative option transaction must be ‘clearly and conspicuously’ disclosed to consumers.

This means that marketers must:

place negative option disclosures in locations where consumers are likely to see them (eg, above forms that collect personal information on an Internet order form);
provide disclosures above checkboxes and submit buttons;
ensure that the importance and relevance of the disclosures is communicated by appropriate labeling;
use text for the disclosure that is easy to read on the screen (eg, use fonts, colors, and backgrounds that are easy to see and read); and
avoid using lengthy disclosures that require scrolling or clicking.

The information must be presented in a way that an ordinary consumer would easily notice and understand. The required disclosures should be communicated as effectively as the sales message. Failure to provide all required information in a truthful and ‘clear and conspicuous’ manner prior to the consumer paying for the goods or services is considered a deceptive act or practice.

Different forms of communication have unique requirements: some of these are set out below.

For written disclosures – ‘clear and conspicuous’ means that the information is printed in the same language as the sales offer and in a type size that a consumer can readily see and understand. In addition, the disclosures must have at least the same emphasis and degree of contrast as the sales offer, and not be buried on the back or at the bottom of the page, or in unrelated information such that an ordinary consumer would not think important enough to read. Where a seller or telemarketer makes required disclosures in a written document that is sent to a consumer and is then followed up with an outbound sales call to the consumer, for the disclosures to be considered clear and conspicuous they must be sent in close proximity to the call. If so, it is likely that the consumer associates the call with the written disclosures.
For verbal disclosures – ‘clear and conspicuous’ means at an understandable speed and cadence, and in the same language, tone and volume as the sales offer so that ordinary consumers can easily hear and understand it. Also, for outbound calls a telemarketer must promptly disclose certain types of information to consumers verbally in the sales presentation. For purposes of the TSR, FTC guidance notes, ‘promptly’ means before any sales pitch is given.

Section 3 – Enforcement and penalties

Enforcement and penalties imposed under ROSCA violations are under the remit of the FTC at the federal level, with state attorneys general leading state enforcement of ROSCA and related state legislation. Since 2014, the FTC has brought 42 enforcement actions related to ROSCA, with 40 of those actions filed in federal court, and two of them being administrative actions. Thirty-five cases were settled, and 32 cases resulted in money judgments.

3.1 Federal Trade Commission (FTC) enforcement

The FTC enforcement actions primarily rely on section 5 of the FTC Act (15 USC 45(a)) (FCTA), ROSCA, and the TSR.

The FTC is committed to challenging violations, and the power of the FTC to bring enforcement actions under the FCTS, ROSCA, and the TSR is executed through various means, including those listed below.

Rules – the creation and enforcement of rules (eg, FTC’s TSR, which the FTC interprets as being incorporated in ROSCA) to address unfair methods of competition and to carry out the laws that protect consumers from deceptive and unfair business practices.
Guides – creation of guides (eg, application of the TSR to certain fundraising activities) to inform marketers what kinds of advertising claims would mislead consumers so they can avoid making those claims.
Warning letters – designed to warn companies that their conduct is likely unlawful and that they should cease and desist these activities or face more serious legal consequences, such as a federal lawsuit. Generally, companies that receive these warning letters quickly correct problematic conduct and come into compliance with the law.
Notices of penalty offenses – issued to companies and that lists certain types of conduct that the Commission has determined, in one or more administrative orders (other than a consent order), to be unfair or deceptive.
Civil penalties – companies that receive notices of penalty offenses and nevertheless engage in prohibited practices can face civil penalties.
Criminal liaison unit – partnering with the US Department of Justice, US attorneys and other federal and state criminal law enforcers may bring legal proceedings against offenders and stop consumer fraud.

For more information, see ‘A Brief Overview of the Federal Trade Commission’s Investigative, Law Enforcement and Rulemaking Authority.’

3.1.1 Treatment of ROSCA violations

Through section 5(a) of the FTC Act (15 USC 8405(a)), a violation of ROSCA is treated as a violation of FTC rules against ‘unfair’ or ‘deceptive’ practices. Specifically, section 5(a) of the FTC Act provides that:

Violation of this Act or any regulation prescribed under this Act shall be treated as a violation of a rule under section 18 of the FTC Act (15 USC 57a) regarding unfair or deceptive acts or practices. The Federal Trade Commission shall enforce this Act in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the FTC Act (15 USC 41 et seq.) were incorporated into and made a part of this Act.

A violation of ROSCA could therefore result in a monetary penalty of up to $53,088 per violation (as of 2025). The amount of the penalty is adjusted for inflation in January of each year. The FTC may also seek injunctive relief against a violator.

3.1.2 Expanding application of ROSCA by the FTC

For decades, the Commission has relied on section 13(b) of the FTC Act (15 USC 53(b)) to bring consumer protection and antitrust actions directly before federal courts where it can seek monetary relief, including restitution and disgorgement, as well as injunctive relief and civil penalties. In 2021, however, in the case of AMG Capital Management, LLC v FTC, the Supreme Court ruled that the statutory ability to seek ‘permanent injunctions’ as provided in section 13(b) was limited to that ability, and did not grant authority to the FTC to seek restitution.

Despite this apparent setback to the FTC’s enforcement powers, the FTC appears to have initiated several new processes that would still result in recovering civil penalties for these types of actions. One available avenue could be to work with the state attorneys general offices, since many state laws include these types of penalty provisions.

Additionally, the FTC may resurrect the infrequently used Penalty Offense Authority provided by section 5(m)(1)(B) of the FTC Act (15 USC 45(m)(1)(B)) which allows the Commission to pursue civil penalties in the federal court provided two requirements set out below are satisfied.

The FTC must prove that a company knew its conduct violated the FTC Act. To establish actual knowledge, the Commission sends a business a Notice of Penalty Offenses (see above) that outlines conduct the FTC has determined violates the FTC Act.
The FTC must have issued a previous administrative order (other than a consent order) that determined that certain specific conduct was unfair or deceptive. If, after receiving notice, a business engages in practices deemed violative, the FTC can pursue civil penalties of up to $51,744 per violation in federal court.

The FTC settlement with MoviePass is indicative of an expansion of the FTC’s use of ROSCA to address deceptive conduct. The case signals that the Commission will seek new avenues to obtain monetary relief following defeat at the Supreme Court in AMG Capital Management.

In 2011, MoviePass launched a subscription service promising customers the ability to view ‘unlimited movies’ at local theaters for a monthly subscription payment of $9.95. MoviePass quickly incurred financial losses from covering the cost of offering its customers unlimited movie tickets. To control the losses, MoviePass implemented several measures to limit its frequent users’ ability to obtain ‘unlimited’ tickets as advertised, including taking steps to block subscribers from using the service by:

invalidating the passwords of MoviePass’s top 75,000 subscribers and programming its smartphone application to prevent customers from successfully resetting their passwords;
implementing a ticket verification program requiring the top 20% of its frequent users to submit pictures of their movie ticket stubs for approval through the MoviePass application within a certain timeframe; and
limiting the number of tickets customers could use per month based on how frequently the customer used the service.

In addition to alleging that MoviePass’s deceptive conduct violated section 5 of the FTC Act, the agency also alleged a violation of ROSCA. The allegations by the FTC were unique in that the FTC’s ROSCA claim does not relate specifically to the negative option feature, and did not allege a lack of consumer consent, or target MoviePass’s billing practices. Rather, the ROSCA violations were used for the first time to target deception around a product’s underlying characteristics.

In this case, it was the deceptive practice of deliberately impeding customers’ access to the service. MoviePass did not disclose that it would prevent consumers from viewing one movie per day or that it would implement ticket verification procedures to frustrate consumers’ attempts to use their passes, rendering the practice deceptive.

Any company offering products or services through negative options and auto renewal payment programs online should take notice of this settlement. While the FTC declined to impose civil penalties in the MoviePass case, this novel use of ROSCA indicates that the FTC may seek civil penalties, and in particular monetary relief when deemed to be warranted.

3.2 State enforcement

States have passed legislation that covers all types of negative option programs and automatic renewals, and some of the states are broader in application than FTC regulations. The term ‘automatic renewal’ is often broader than that used by the FTC to describe a specific form of negative option plan. To the extent that federal and state regulations overlap, the federal standards will set the minimum bar for compliance, but states can impose stricter laws. California, for example, has adopted some of the broadest and strictest requirements under its automatic renewal law (see below), and a few other jurisdictions have followed suit. Other states have also decided to regulate automatic renewal contracts, but with different or less extensive compliance regimes.

3.2.1 Actions brought by state attorneys general

Section 4 of ROSCA (15 USC 8403) allows state attorneys general to bring a civil action in federal court to obtain injunctive relief for alleged violations of ROSCA, with certain requirements and limitations. For example, under section 8405(b) the state must provide written notice to the FTC of any civil action permitted under this section as well as a copy of its complaint. In addition, under section 8405(c) the Commission may intervene in such civil action and upon intervening:

be heard on all matters arising in such civil action; and
file petitions for appeal of a decision in such civil action.

3.2.2 Limitations on bringing state-based actions

Section 4 of ROSCA (15 USC 8405(c)) provides that no separate suit may be brought under that section if, at the time the suit is brought, the same alleged violation is the subject of a pending action by the FTC or other federal agency.

3.2.3 ROSCA and Section 17600 California Business and Professions Code

California law, the Business and Professions Code 17600 et seq, imposes requirements on automatic renewal offers to California residents, including information, notice, and consent, that are like ROSCA but that are also broader in some respects. The law provides that:

an offer’s terms and renewal policies must be presented in a ‘clear and conspicuous’ manner;
a consumer’s credit card may not be charged without the affirmative consent;
the cancellation policy must be presented clearly and conspicuously;
material terms may not be modified without ‘clear and conspicuous’ notice; and
contact information must be provided.

Of particular interest is the provision that the failure to first obtain a consumer’s affirmative consent will result in the products or services being deemed unconditional gifts.

In addition, marketers doing business in California are required to permit online cancellation of auto-renewing memberships or recurring purchases that were commenced online. There are also additional requirements for marketers that provide an automatic renewal offer that includes a free gift, trial, or promotional pricing, including:

notification of how to cancel prior to being charged;
explanation of the price to be charged when the promotion or free trial ends; and
if the initial offer is at a promotional price that later will increase, consumer consent must be obtained to the non-discounted price prior to billing.

3.3 Penalties

3.3.1 Civil penalties

As detailed in section 3.1.2, the pathway to the imposition of civil penalties by the FTC has changed, and two requirements must be satisfied. As of 2025, the civil penalty amount is $53,088.

3.3.2 Calculating potential penalties

For the purposes of calculating penalties, the Federal Civil Penalties Inflation Adjustment Act 2015, PL 114-74 (28 USC 2461 note) provides that, in the case of a violation through continuing failure to comply with a rule or with the statute, each day such failure continues is treated as a separate violation. When determining the amount of a civil penalty, the court shall consider the degree of culpability, any history of prior conduct, ability to pay, effect on ability to continue to do business, ‘and such other matters as justice may require.’

Section 4 – Designing a ROSCA compliance program

Compliance with ROSCA includes compliance with rules regarding advertising such as not making false or misleading statements and ensuring any required disclosures are conspicuous. However, the particularized focus of ROSCA means that online retailers must be particularly careful to review their online sales and marketing billing practices, and assess the business and sales and marketing function to ensure compliance.

4.1 Assess your organization and its marketing

The first step in developing a compliance program is to undertake a thorough assessment of your organization and its marketing practices. A helpful resource in conducting that assessment is the FTC’s Recipe for a ROSCA Violation. Although the fact pattern in the case example is extreme, it does provide a list of business practices that the FTC considers problematic and that would likely result in some type of investigation and/or enforcement action.

4.1.1 Billing practices

Review how your organization obtains billing information for transactions with customers. Since your organization could be held liable for unlawful billing practices, it is important to keep control over those practices. Billing information should come directly from the customers, and not from any third party or even from an affiliate of the company. The review should consider how billing information is handled after a customer’s transaction with the organization.

4.1.2 Marketing practices

All marketing should be conducted in accordance with ROSCA provisions. Close consideration must be given to the phrase ‘clear and conspicuous.’ All information related to the offer and the payment terms should be presented in a way that an ordinary consumer would easily notice and understand it. Required disclosures should be communicated as effectively as the sales message.

4.2 All consent must be informed consent

The customer should provide express and informed consent to all charges made to their accounts.

To the extent the company chooses to offer trial and introductory periods, they should be true trial or introductory offers. There should be no obligation on the part of the customer to affirmatively cancel future membership or order obligations.

4.3 Avoid misrepresentations

As noted above, many of the rules that apply to other types of marketing and advertising also apply to marketing governed by ROSCA. Chief among these rules is the rule that states that misrepresentations must be avoided.

The Commission has provided extensive guidance on what it considers misrepresentations in the FTC Policy Statement on Deception. In that statement, it says that to be deceptive, a misrepresentation must be likely to mislead reasonable consumers under the circumstances. The test is whether the consumer’s interpretation or reaction is reasonable. When representations or sales practices are targeted to a specific audience, the FTC determines the effect of the practice on a reasonable member of that group.

4.4 Disclosures of material terms

Material terms in an online agreement to purchase goods or services must be disclosed in a manner that the buyer will be able to see without undue difficulty (eg, without having to click through to another webpage). The standard for disclosure under ROSCA is that the disclosures are ‘clear and conspicuous.’

As part of the ROSCA compliance program, it will be vital that the program outline the method and manner in which these disclosures are made. This necessarily includes both the consistent identification and disclosure of material terms (ie, define what constitutes a “material term” for the purposes of each agreement and ensure each term is ‘clear and conspicuous’ within the agreement.

4.4.1 FTC Dot.Com Disclosure Guidance

In 2013, the FTC issued ‘Dot.Com Disclosures: How to Make Effective Disclosures in Digital Advertising.’ In June 2022 the FTC recognized that digital deception had grown in sophistication since 2013, and began seeking public comment on issues that the FTC staff considered especially important with a view to modernizing the guidance, including:

the use of sponsored and promoted advertising on social media;
advertising embedded in games and virtual reality and microtargeted advertisements;
the ubiquitous use of dark patterns, manipulative user interface designs used on websites and mobile apps, and in digital advertising that pose unique risks to consumers;
whether the current guidance adequately addresses advertising on mobile devices;
whether additional guidance is needed to reflect the multi-party selling arrangements involved in online commerce and affiliate marketing arrangements;
how the guidance on the use of hyperlinks can be strengthened to better protect consumers; and
the adequacy of online disclosures when consumers must navigate multiple webpages.

4.5 Review and ongoing monitoring

Any business with an online presence should take notice of the FTC’s areas of concern and conduct a review of existing and new advertising and marketing policies. It is recommended to carefully track any updates to guidance that the FTC may issue. The cost of non-compliance, including fines, penalties, lawsuits, and reputational damage is problematic for any organization, and with the correct approach risks can be mitigated.

Additional resources

Legislation

Federal Trade Commission Act (FTC Act), 15 USC 41-58
Restore Online Shoppers’ Confidence Act (ROSCA), 15 USC 8401-8405

Federal Trade Commission guidance

Federal Trade Commission – ‘FTC Publishes Inflation-Adjusted Civil Penalty Amounts for 2025’
Federal Trade Commission – ‘FTC Staff Revises Online Advertising Disclosure Guidelines’