Unsubscribe Act of 2021

To increase consumer protection with respect to negative option offers in all media, including on the internet, and for other purposes. 1. Short title This Act may be cited as the Unsubscribe Act of 2021 2. Increased consumer protection with respect to negative option agreements (a) Disclosure of negative options It shall be unlawful for any person to charge or attempt to charge any consumer’s credit card, debit card, bank account, or other financial account, or otherwise receive payment, through a negative option, unless the person clearly and conspicuously discloses all material terms of the transaction before obtaining the consumer's billing information or receiving payment, whichever is earlier. (b) Express informed consent for negative options It shall be unlawful for any person to charge or attempt to charge any consumer’s credit card, debit card, bank account, or other financial account, or otherwise receive payment, through a negative option, unless the person obtains a consumer's express informed consent before receiving payment or charging the consumer for products or services, or otherwise receiving payment, through such transaction. (c) Term limitation for negative option agreements After the expiration of an introductory period, initial fixed period, or other preliminary period, it shall be unlawful for any person to automatically renew or otherwise continue a negative option agreement with any consumer for a period greater than 1 month, unless such person, at the time of such expiration, obtains a consumer's express informed consent to renew or otherwise continue such agreement for a period greater than 1 month. (d) Cancellation of negative option agreements It shall be unlawful for any person to enter into a negative option agreement with any consumer, unless the negative option agreement provides the consumer with a simple mechanism to stop any recurring payments, including the ability to cancel the agreement in the same manner, and by the same means, into which the agreement was entered. (e) Requirements for free-to-Pay conversion contracts (1) In general It shall be unlawful for any person to charge or attempt to charge any consumer’s credit card, debit card, bank account, or other financial account for any good or service sold in a free-to-pay conversion contract entered into, unless each of the following is met: (A) Before obtaining the consumer’s billing information, or otherwise receiving payment, the person has obtained the consumer’s express informed consent to enter into the negative option contract and has provided the consumer with a notification of the terms of the negative option contract, including, but not limited to, the following: (i) For an introductory period, the consumer will receive the good or service at no cost or for a nominal cost. (ii) After the introductory period, the amount the consumer will be charged or otherwise required to pay, including any cost increase. (iii) The total cost (or range of costs) the consumer will be charged or otherwise required to pay. (B) Before the initial charge, payment, or initial increase after the introductory period, the person informs the consumer about the upcoming charge or payment and provides the consumer with access to information about the simple mechanisms to cancel the contract. (2) Mandatory notifications After the introductory period in a free-to-pay conversion contract entered into between any person and any consumer, and at regular intervals, as determined by the Commission, but no less frequently than annually, while the contract remains in effect, the person shall provide the consumer with a notification of the terms of the contract. (f) Mandatory notifications with respect to other negative option agreements (1) Automatic renewal contracts With respect to an automatic renewal contract entered into between any person and any consumer— (A) not later than 2 days and no more than 7 days before the end of the initial fixed period in the contract, the person shall provide the consumer with a notification of the terms of the contract; and (B) after the initial fixed period in the contract, and at regular intervals, as determined by the Commission, but no less frequently than annually, while the contract remains in effect, the person shall provide the consumer with a notification of the terms of the contract and access to, or information about, the simple mechanisms to cancel the contract. (2) Continuity plan contracts With respect to a continuity plan contract entered into between any person and any consumer, the person shall provide the consumer with a notification of the terms of the contract and access to information about the simple mechanisms to cancel the contract at regular intervals, as determined by the Commission, but no less frequently than annually while the contract remains in effect. 3. Enforcement (a) By the Commission (1) In General A violation of this Act shall be treated as a violation of a rule issued under section 18(a)(1)(B) of the Federal Trade Commission Act ( 15 U.S.C. 57a(a)(1)(B) 15 U.S.C. 41 et seq. (2) Penalties Any person who violates this Act shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act as though all applicable terms and provisions of the Federal Trade Commission Act were incorporated in and made a part of this Act. (3) Authority preserved Nothing in this Act shall be construed to limit the authority of the Commission under any other provision of law. (b) By State Attorneys General (1) In general Except as provided in paragraph (5), the attorney general of a State or other authorized State officer alleging a violation of this Act that affects or may affect the State or the residents of the State may bring an action on behalf of the residents of the State in any United States district court for the district in which the defendant is found, resides, or transacts business, or wherever venue is proper under section 1391 of title 28, United States Code, to obtain appropriate injunctive relief. (2) Notice to Commission required A State shall provide prior written notice to the Commission of any civil action brought under paragraph (1) that includes a copy of the complaint for the civil action, except that if providing such prior notice is not feasible for the State, the State shall provide notice immediately upon instituting the civil action. (3) Intervention by the Commission The Commission may intervene in a civil action brought under paragraph (1) and upon intervening— (A) may be heard on all matters arising in the civil action; and (B) may file petitions for appeal of a decision in the civil action. (4) Construction Nothing in this subsection shall be construed— (A) to prevent the attorney general of a State or other authorized State officer from exercising the powers conferred on the attorney general or other authorized State officer by the laws of the State; or (B) to prohibit the attorney general of a State or other authorized State officer from proceeding in State or Federal court on the basis of an alleged violation of any civil or criminal statute of that State. (5) Limitation An action may not be brought under this subsection if, at the time the action is brought, the same alleged violation is the subject of a pending action by the Commission or the United States. 4. Preemption of directly conflicting State laws This Act shall supersede any State law to the extent such law directly conflicts with the provisions of this Act, or a standard, rule, or regulation promulgated under this Act, and then only to the extent of such direct conflict. Any State law, rule, or regulation shall not be considered in direct conflict if it affords a greater level of protection to individuals protected under this Act. 5. Definitions In this Act: (1) Automatic renewal contract The term automatic renewal contract (2) Commission The term Commission (3) Continuity plan contract The term continuity plan contract (4) Free-to-pay conversion contract The term free-to-pay conversion contract (A) for an introductory period, the consumer receives a good or service at no charge or for a nominal charge; and (B) after the introductory period, the amount the consumer will be charged or otherwise be required to pay is increased for the good or service. (5) Negative option The term negative option (A) an offer or agreement to sell or provide any goods or services, or 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 acceptance of the offer, including but not limited to— (i) an automatic renewal contract; (ii) a continuity plan contract; (iii) a free-to-pay conversion contract; (iv) a pre-notification negative option plan contract; or (v) any combination of the contracts described in clauses (i) through (iv). (6) Notification The term notification (7) Pre-notification negative option plan contract The term pre-notification negative option plan contract 6. Effective date This Act shall apply with respect to contracts entered into after the date that is 1 year after the date of the enactment of this Act.

Summary: Unsubscribe Act of 2021 This bill requires that certain consumer protections are included in negative option agreements (an agreement under which a consumer's failure to take an affirmative action is considered approval to be charged for goods or services). These agreements are prohibited unless the agreement discloses all material terms; a consumer provides express informed consent before the consumer is charged for a product or the agreement is automatically renewed; and the agreement provides the consumer with a way to cancel the agreement, in the same manner by which the agreement was entered, before incurring further or increased charges. Further, under free-to-pay conversion contracts (a type of negative option agreement where a consumer is charged a nominal introductory rate and an increased rate after the introductory period ends), before charging a consumer the provider of the good or service must obtain the consumer's informed consent, provide the terms of the contract, and provide information about how to cancel the contract. The bill also requires that certain notifications are provided to consumers in the context of other forms of negative option agreements online, such as notice between two and seven days before an automatic renewal. The bill provides for enforcement of these requirements by the Federal Trade Commission and state attorneys general.