The Federal Trade Commission (FTC) recently released a Bringing Dark Patterns to Light report, detailing the rise in sophisticated “dark patterns” that the FTC asserts are designed to trick and trap consumers. As the FTC’s latest effort on the subject, the report follows an April 2021 workshop that featured a variety of speakers, including consumer advocates, congressional members, researchers, legal experts, and other industry professionals, and explored whether user interfaces can effectively obscure, subvert, or impair consumer autonomy and decision-making. Then in June, as we posted here, the FTC published a request for information on topics, including “the increased use of dark patterns, manipulative user interface design, and other forms of digital deception that pose unique risks to consumers online and in the mobile space.” Some of the issues addressed as “dark patterns” also are subject to other regulatory initiatives, such as the FTC’s proposed Motor Vehicle Trade Regulation Rule, which focuses on price advertising (discussed here) and a broader “war on fees” pursued by multiple regulators.

The new report found dark patterns used in a variety of industries, including e-commerce, cookie consent banners, children’s apps, and subscription sales. According to the FTC, four such patterns include:

1. FTC Says Design Elements Can Induce False Beliefs

  • A company may make an outright false claim or employ design elements that create a misleading impression to spur consumers into making a purchase they would not otherwise make.
  • Examples include advertisements deceptively formatted to look like independent, editorial content; purportedly neutral comparison-shopping sites that actually rank companies based on compensation; and countdown timers designed to make consumers believe they only have a limited time to purchase a product or service when the offer is not actually time limited.

2. FTC Says Design Elements Can Hide or Delay Disclosure of Material Information

  • Examples include burying key limitations in dense terms of service documents that consumers don’t see before purchase; tricking people into paying hidden fees; and “drip pricing” where companies advertise only part of a product’s total price to lure in consumers, while failing to mention other mandatory charges until late in the buying process.

3. FTC Says Design Elements Can Lead to Unauthorized Charges

  • Another common dark pattern involves tricking consumers into paying for goods or services they did not intend to buy, regardless of whether the transaction involves single or recurring charges.
  • Examples include offering a free trial period that automatically converts into a recurring subscription charge if consumers fail to cancel; making it hard for consumers to cancel subscription services, resulting in ongoing recurring charges; and children’s games that rack up real charges for the account holder.

4. FTC Says Design Elements Can Obscure Privacy Choices

  • This pattern often presents itself as giving consumers choices about privacy settings or sharing data, but it is designed to intentionally steer consumers toward the option that gives away the most personal information.
  • An example of this tactic includes when a company presents consumers with the option of whether to allow the company to set a cookie where the company’s preferred choice is highlighted, while greying out the disfavored.

The report highlights multiple enforcement actions under each of these dark pattern categories and concludes with a stern warning that “[f]irms that nonetheless employ dark patterns, take notice: where these practices violate the FTC Act, ROSCA, the TSR, TILA, CAN-SPAM, COPPA, ECOA, or other statutes and regulations enforced by the FTC, we will continue to take action.”

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Photo of Alan D. Wingfield Alan D. Wingfield

Alan Wingfield helps consumer-facing clients navigate compliance, litigation and regulatory risks posed by the complex web of state and federal consumer protection laws. He is a trusted advisor and tireless advocate, helping clients develop practical compliance and dispute-resolution strategies.

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Chris focuses his practice on consumer financial services compliance, guiding clients through the many federal and state laws and regulations that impact consumer credit programs.

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Chris is the co-leader of the Consumer Financial Services Regulatory practice at the firm. He advises financial services institutions facing state and federal government investigations and examinations, counseling them on compliance issues including UDAP/UDAAP, credit reporting, debt collection, and fair lending, and defending…

Chris is the co-leader of the Consumer Financial Services Regulatory practice at the firm. He advises financial services institutions facing state and federal government investigations and examinations, counseling them on compliance issues including UDAP/UDAAP, credit reporting, debt collection, and fair lending, and defending them in individual and class action lawsuits brought by consumers and enforcement actions brought by government agencies.

Photo of Caleb Rosenberg Caleb Rosenberg

Caleb is counsel in the firm’s Consumer Financial Services Practice Group. He focuses his practice on helping federal and state-chartered banks, fintech companies, finance companies, and licensed lenders navigate regulatory risks posed by state and federal laws aimed at protecting consumers and small…

Caleb is counsel in the firm’s Consumer Financial Services Practice Group. He focuses his practice on helping federal and state-chartered banks, fintech companies, finance companies, and licensed lenders navigate regulatory risks posed by state and federal laws aimed at protecting consumers and small businesses in the credit and alternative finance products industry.

Photo of Mark Furletti Mark Furletti

Mark helps clients navigate regulatory risks posed by state and federal laws aimed at protecting consumers and small business, particularly in connection with credit, deposit, and payments products. He is a trusted advisor, providing practical legal counsel and advice to providers of financial

Mark helps clients navigate regulatory risks posed by state and federal laws aimed at protecting consumers and small business, particularly in connection with credit, deposit, and payments products. He is a trusted advisor, providing practical legal counsel and advice to providers of financial services across numerous industries.