II 

117TH CONGRESS 

1ST SESSION S. 2072 

To increase consumer protection with respect to negative option offers in 

all media, including on the internet, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 16, 2021 

Mr. SCHATZ (for himself, Mr. THUNE, Mr. WARNOCK, and Mr. KENNEDY) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation 

A BILL 

To increase consumer protection with respect to negative 

option offers in all media, including on the internet, 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Unsubscribe Act of 

5 2021’’. 

6 SEC. 2. INCREASED CONSUMER PROTECTION WITH RE7 SPECT TO NEGATIVE OPTION AGREEMENTS. 

8 (a) DISCLOSURE OF NEGATIVE OPTIONS.—It shall be 

9 unlawful for any person to charge or attempt to charge 


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1 any consumer’s credit card, debit card, bank account, or 

2 other financial account, or otherwise receive payment, 

3 through a negative option, unless the person clearly and 

4 conspicuously discloses all material terms of the trans5 action before obtaining the consumer’s billing information 

6 or receiving payment, whichever is earlier. 

7 (b) EXPRESS INFORMED CONSENT FOR NEGATIVE

8 OPTIONS.—It shall be unlawful for any person to charge 

9 or attempt to charge any consumer’s credit card, debit 

10 card, bank account, or other financial account, or other11 wise receive payment, through a negative option, unless 

12 the person obtains a consumer’s express informed consent 

13 before receiving payment or charging the consumer for 

14 products or services, or otherwise receiving payment, 

15 through such transaction. 

16 (c) TERM LIMITATION FOR NEGATIVE OPTION

17 AGREEMENTS.—After the expiration of an introductory 

18 period, initial fixed period, or other preliminary period, it 

19 shall be unlawful for any person to automatically renew 

20 or otherwise continue a negative option agreement with 

21 any consumer for a period greater than 1 month, unless 

22 such person, at the time of such expiration, obtains a con23 sumer’s express informed consent to renew or otherwise 

24 continue such agreement for a period greater than 1 

25 month. 


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1 (d) CANCELLATION OF NEGATIVE OPTION AGREE2 MENTS.—It shall be unlawful for any person to enter into 

3 a negative option agreement with any consumer, unless 

4 the negative option agreement provides the consumer with 

5 a simple mechanism to stop any recurring payments, in6 cluding the ability to cancel the agreement in the same 

7 manner, and by the same means, into which the agreement 

8 was entered. 

9 (e) REQUIREMENTS FOR FREE-TO-PAY CONVERSION

10 CONTRACTS.— 

11 (1) IN GENERAL.—It shall be unlawful for any 

12 person to charge or attempt to charge any con13 sumer’s credit card, debit card, bank account, or 

14 other financial account for any good or service sold 

15 in a free-to-pay conversion contract entered into, un16 less each of the following is met: 

17 (A) Before obtaining the consumer’s billing 

18 information, or otherwise receiving payment, 

19 the person has obtained the consumer’s express 

20 informed consent to enter into the negative op21 tion contract and has provided the consumer 

22 with a notification of the terms of the negative 

23 option contract, including, but not limited to, 

24 the following: 


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1 (i) For an introductory period, the 

2 consumer will receive the good or service at 

3 no cost or for a nominal cost. 

4 (ii) After the introductory period, the 

5 amount the consumer will be charged or 

6 otherwise required to pay, including any 

7 cost increase. 

8 (iii) The total cost (or range of costs) 

9 the consumer will be charged or otherwise 

10 required to pay. 

11 (B) Before the initial charge, payment, or 

12 initial increase after the introductory period, 

13 the person informs the consumer about the up14 coming charge or payment and provides the 

15 consumer with access to information about the 

16 simple mechanisms to cancel the contract. 

17 (2) MANDATORY NOTIFICATIONS.—After the in18 troductory period in a free-to-pay conversion con19 tract entered into between any person and any con20 sumer, and at regular intervals, as determined by 

21 the Commission, but no less frequently than annu22 ally, while the contract remains in effect, the person 

23 shall provide the consumer with a notification of the 

24 terms of the contract. 


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1 (f) MANDATORY NOTIFICATIONS WITH RESPECT TO

2 OTHER NEGATIVE OPTION AGREEMENTS.— 

3 (1) AUTOMATIC RENEWAL CONTRACTS.—With 

4 respect to an automatic renewal contract entered 

5 into between any person and any consumer— 

6 (A) not later than 2 days and no more 

7 than 7 days before the end of the initial fixed 

8 period in the contract, the person shall provide 

9 the consumer with a notification of the terms of 

10 the contract; and 

11 (B) after the initial fixed period in the con12 tract, and at regular intervals, as determined by 

13 the Commission, but no less frequently than an14 nually, while the contract remains in effect, the 

15 person shall provide the consumer with a notifi16 cation of the terms of the contract and access 

17 to, or information about, the simple mecha18 nisms to cancel the contract. 

19 (2) CONTINUITY PLAN CONTRACTS.—With re20 spect to a continuity plan contract entered into be21 tween any person and any consumer, the person 

22 shall provide the consumer with a notification of the 

23 terms of the contract and access to information 

24 about the simple mechanisms to cancel the contract 

25 at regular intervals, as determined by the CommisVerDate Sep 11 2014 16:36 Jul 12, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2072.IS S2072

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1 sion, but no less frequently than annually while the 

2 contract remains in effect. 

3 SEC. 3. ENFORCEMENT. 

4 (a) BY THE COMMISSION.— 

5 (1) IN GENERAL.—A violation of this Act shall 

6 be treated as a violation of a rule issued under sec7 tion 18(a)(1)(B) of the Federal Trade Commission 

8 Act (15 U.S.C. 57a(a)(1)(B)) regarding unfair or 

9 deceptive acts or practices. The Commission shall 

10 enforce this Act in the same manner, by the same 

11 means, and with the same jurisdiction, powers, and 

12 duties as though all applicable terms and provisions 

13 of the Federal Trade Commission Act (15 U.S.C. 41 

14 et seq.) were incorporated into and made a part of 

15 this Act. 

16 (2) PENALTIES.—Any person who violates this 

17 Act shall be subject to the penalties and entitled to 

18 the privileges and immunities provided in the Fed19 eral Trade Commission Act as though all applicable 

20 terms and provisions of the Federal Trade Commis21 sion Act were incorporated in and made a part of 

22 this Act. 

23 (3) AUTHORITY PRESERVED.—Nothing in this 

24 Act shall be construed to limit the authority of the 

25 Commission under any other provision of law. 


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1 (b) BY STATE ATTORNEYS GENERAL.— 

2 (1) IN GENERAL.—Except as provided in para3 graph (5), the attorney general of a State or other 

4 authorized State officer alleging a violation of this 

5 Act that affects or may affect the State or the resi6 dents of the State may bring an action on behalf of 

7 the residents of the State in any United States dis8 trict court for the district in which the defendant is 

9 found, resides, or transacts business, or wherever 

10 venue is proper under section 1391 of title 28, 

11 United States Code, to obtain appropriate injunctive 

12 relief. 

13 (2) NOTICE TO COMMISSION REQUIRED.—A 

14 State shall provide prior written notice to the Com15 mission of any civil action brought under paragraph 

16 (1) that includes a copy of the complaint for the civil 

17 action, except that if providing such prior notice is 

18 not feasible for the State, the State shall provide no19 tice immediately upon instituting the civil action. 

20 (3) INTERVENTION BY THE COMMISSION.—The 

21 Commission may intervene in a civil action brought 

22 under paragraph (1) and upon intervening— 

23 (A) may be heard on all matters arising in 

24 the civil action; and 


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1 (B) may file petitions for appeal of a deci2 sion in the civil action. 

3 (4) CONSTRUCTION.—Nothing in this sub4 section shall be construed— 

5 (A) to prevent the attorney general of a 

6 State or other authorized State officer from ex7 ercising the powers conferred on the attorney 

8 general or other authorized State officer by the 

9 laws of the State; or 

10 (B) to prohibit the attorney general of a 

11 State or other authorized State officer from 

12 proceeding in State or Federal court on the 

13 basis of an alleged violation of any civil or 

14 criminal statute of that State. 

15 (5) LIMITATION.—An action may not be 

16 brought under this subsection if, at the time the ac17 tion is brought, the same alleged violation is the sub18 ject of a pending action by the Commission or the 

19 United States. 

20 SEC. 4. PREEMPTION OF DIRECTLY CONFLICTING STATE 

21 LAWS. 

22 This Act shall supersede any State law to the extent 

23 such law directly conflicts with the provisions of this Act, 

24 or a standard, rule, or regulation promulgated under this 

25 Act, and then only to the extent of such direct conflict. 


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1 Any State law, rule, or regulation shall not be considered 

2 in direct conflict if it affords a greater level of protection 

3 to individuals protected under this Act. 

4 SEC. 5. DEFINITIONS. 

5 In this Act: 

6 (1) AUTOMATIC RENEWAL CONTRACT.—The 

7 term ‘‘automatic renewal contract’’ means a contract 

8 between any person and any consumer for a good or 

9 service that is automatically renewed after an initial 

10 fixed period, unless the consumer instructs other11 wise. 

12 (2) COMMISSION.—The term ‘‘Commission’’ 

13 means the Federal Trade Commission. 

14 (3) CONTINUITY PLAN CONTRACT.—The term 

15 ‘‘continuity plan contract’’ means a contract between 

16 any person and any consumer under which the con17 sumer agrees to pay for periodic shipments of goods 

18 or the provision of services, unless the consumer in19 structs otherwise. 

20 (4) FREE-TO-PAY CONVERSION CONTRACT.— 

21 The term ‘‘free-to-pay conversion contract’’ means a 

22 contract between any person and any consumer 

23 under which— 


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1 (A) for an introductory period, the con2 sumer receives a good or service at no charge 

3 or for a nominal charge; and 

4 (B) after the introductory period, the 

5 amount the consumer will be charged or other6 wise be required to pay is increased for the 

7 good or service. 

8 (5) NEGATIVE OPTION.—The term ‘‘negative 

9 option’’ means— 

10 (A) an offer or agreement to sell or provide 

11 any goods or services, or a provision under 

12 which the customer’s silence or failure to take 

13 an affirmative action to reject goods or services 

14 or to cancel the agreement is interpreted by the 

15 seller as acceptance of the offer, including but 

16 not limited to— 

17 (i) an automatic renewal contract; 

18 (ii) a continuity plan contract; 

19 (iii) a free-to-pay conversion contract; 

20 (iv) a pre-notification negative option 

21 plan contract; or 

22 (v) any combination of the contracts 

23 described in clauses (i) through (iv). 

24 (6) NOTIFICATION.—The term ‘‘notification’’, 

25 when used with respect to the terms of a contract, 


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1 means a written notification that clearly, conspicu2 ously, and concisely states all material terms of the 

3 negative option, including information regarding the 

4 simple mechanisms for cancellation. 

5 (7) PRE-NOTIFICATION NEGATIVE OPTION PLAN

6 CONTRACT.—The term ‘‘pre-notification negative op7 tion plan contract’’ means a contract between any 

8 person and any consumer under which the consumer 

9 receives periodic notices offering goods or services 

10 and, unless the consumer specifically rejects the 

11 offer, the consumer automatically receives the goods 

12 and services and agrees to pay for such goods and 

13 services. 

14 SEC. 6. EFFECTIVE DATE. 

15 This Act shall apply with respect to contracts entered 

16 into after the date that is 1 year after the date of the 

17 enactment of this Act. 

Æ 


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