There’s No Such Thing as a “Free” Sample: FTC Provides Guidance on Advertising “Free” Samples Combined with Recurring Charges
On Tuesday (September 20, 2016), the FTC and Nutraclick entered into a consent order concerning Nutraclick’s online offer for “free” samples of supplements and beauty products. The FTC alleged that Nutraclick failed to clearly disclose to people who requested the samples that they would be enrolled in a membership program and billed up to $79.99 per month, unless they canceled within an 18-day trial period. While this promotional offer may have netted significant profits, its success was short-lived when at least 70,000 filed complaints prompting the FTC investigation.
The FTC alleged violations of the FTC Act’s prohibition against unfair or deceptive acts or practices (15 U.S.C. §45(a)) and the Restore Online Shoppers’ Confidence Act, which pertains to selling online through a negative option feature, i.e., where a consumer’s silence is interpreted as an acceptance of the offer. 15 U.S.C. §8403.