Advertising Law Blog

In particular, NAD reviewed a sponsored Instagram post from Blue Apron that contained the express claim “Canceling meals is easy.” Further, NAD determined that, when viewed in context, the express claim reasonably conveys the message that consumers can cancel their subscription seamlessly.

In reviewing Blue Apron’s cancellation process, NAD discussed the FTC’s recent “Bringing Dark Patterns to Light” Report. In that report, the FTC advised that “sellers should provide cancellation mechanisms that are at least as easy to use as the method the consumer used to buy the product or sign up for the service.” Further, the report goes on to state that this means that “consumers should be able to cancel their subscription through the same medium (such as a website or mobile application) that the consumer used to sign up for the negative option plan in the first place.”

Blue Apron previously required consumers to email it for instructions on how to cancel a subscription. However, as NAD was undergoing its investigation, Blue Apron explained that it discontinued this practice, and now provides customers with multiple ways to cancel their subscriptions on the app and website. Specifically, customers who wish to cancel their subscription can click “Pause/Cancel subscription” in their account, select “Cancel my subscription,” and answer one single question, “Why are you canceling?” NAD applied the standards set forth in the FTC Dark Patterns report, and held that “as consumers can sign up for Blue Apron online, ‘easy’ cancellation methods should similarly be available online.” As cancellation is available online, NAD found the claim to be supported.

Takeaway: An increasing number of U.S. states have enacted automatic renewal laws, or enhanced existing ones, to address aspects of automatic renewal contracts, including the ways in which cancellation of an automatically renewing contract may be effectuated. In addition to keeping up with these state law requirements, marketers offering automatically renewing subscription programs should familiarize themselves with guidance and requirements from other regulators, including the FTC and NAD.  As these laws and their interpretations are evolving, marketers that use continuity programs must stay on top of these developments.