What do the agencies mean by "dark patterns"?

The FTC's Amazon complaint describes dark patterns as manipulative design elements that trick users into making decisions they would not otherwise have made. The CFPB puts it as design features used to deceive, steer, or manipulate users into behavior that is profitable for a company but often harmful to users or contrary to their intent.

Which statute is a business actually dealing with when an agency says "dark patterns"?

In the FTC's Amazon case the statutes are Section 5(a) of the FTC Act and Section 4 of ROSCA, so the label sits on top of existing law. For consumer financial products, the CFPB's circular points to the CFPA's prohibition on unfair, deceptive, and abusive acts or practices. The circular itself is a statement of policy and does not impose legal requirements on external parties.

Can a business defend on the ground that it had no fair notice that its design was a dark pattern?

The Amazon court rejected that argument at the dismissal stage, because the relevant question is whether the defendants had fair notice of what the statute itself requires, not of the FTC's interpretation. The court's reasoning was that there were no controlling regulations or policy statements reflecting an official, prior interpretation of ROSCA that the FTC later changed. The ruling is narrow, though: the order addresses only the "dark patterns" due process argument and does not say the defendants cannot proceed with a due process defense based on lack of notice.

What kinds of designs does the FTC point to as dark patterns?

The FTC's amended complaint against Amazon lists several named design elements. One is Sneaking, which consists of hiding or disguising relevant information, or delaying its disclosure. Another is Obstruction, also called the "roach motel" technique, which involves intentionally complicating a process through unnecessary steps to dissuade consumers from an action. A third is Confirmshaming, which uses emotive wording around the disfavored option to guilt users into selecting the favored option.

Does the concern reach beyond subscriptions?

Yes, the CFPB has raised it for consent and opt-out flows as well. In its proposed data-rights rulemaking, it asked for feedback on how opt-in mechanisms could be implemented to prevent third parties from using "dark patterns" or deceptive practices aimed at soliciting consumer consent. In its privacy request for information, it asked what restrictions, conditions, obstacles, website or app designs, or dark patterns companies place in the way of consumers who wish to opt out of information sharing.

UnfairnessAgency label

Dark patterns

Berkeley Robinson, Managing Attorney at Robinson Law Firm PLLC

Author

Berkeley Robinson, Esq.

Managing Attorney, Robinson Law Firm PLLC

Berkeley has served as the go-to counsel for many scaling businesses in a transactional and litigation management capacity. Before becoming an attorney, Berkeley grew sales teams, ran online marketing campaigns, and did everything else an entrepreneur does—and still does today as the founder of two online businesses.

Definition

"Dark patterns" is a label rather than a separate violation: in the FTC's Amazon case, the relief sought is for violations of Section 5(a) of the FTC Act and Section 4 of ROSCA. Source: Complaint for Permanent Injunction, Civil Penalties, Monetary Relief, and Other Equitable Relief (FTC v. Amazon.com, Inc.)

"Dark patterns" are "design features used to deceive, steer, or manipulate users into behavior that is profitable for a company, but often harmful to users or contrary to their intent." Source: Consumer Financial Protection Circular 2023–01: Unlawful Negative Option Marketing Practices (CFPB) One FTC commissioner has sorted these designs into tricks, which use visual misdirection, confusing language, hidden alternatives, or fake urgency to steer people toward or away from choices, and traps, which make it easy to get in but almost impossible to escape. Source: Statement of Commissioner Rohit Chopra (FTC)

Key legal rules

These are the rules the agencies have applied to conduct they call "dark patterns":

A seller offering a negative option program risks violating the law if the seller (1) does not clearly and conspicuously disclose the material terms of the negative option offer to the consumer, (2) does not obtain the consumer’s informed consent, or (3) misleads consumers who wish to cancel, erects unreasonable barriers to cancellation, or impedes the effective operation of promised cancellation procedures. Source: Consumer Financial Protection Circular 2023–01: Unlawful Negative Option Marketing Practices (CFPB)
Under the CFPA, a representation, omission, or practice is deceptive if it is likely to mislead a reasonable consumer in the circumstances and is material to a consumer’s decision to purchase the product or service. Source: Consumer Financial Protection Circular 2023–01: Unlawful Negative Option Marketing Practices (CFPB)
A practice is unfair if it causes or is likely to cause substantial injury to consumers that is not reasonably avoidable and the injury is not outweighed by countervailing benefits to consumers or competition. Source: Consumer Financial Protection Circular 2023–01: Unlawful Negative Option Marketing Practices (CFPB)
An abusive act or practice materially interferes with the ability of a consumer to understand a term or condition of a consumer financial product or service, or takes unreasonable advantage of specified consumer vulnerabilities (12 U.S.C. 5531(d)). Source: CFPB, Request for Information on privacy (GLBA and Regulation P) (Jan. 2025)
Under proposed § 1033.421(h)(1) of the CFPB's personal financial data rights rulemaking, a third party would have to certify that its revocation mechanism will be as easy to access and operate as the initial authorization, and that the consumer will not be subject to costs or penalties for revoking. Source: CFPB, Notice of Proposed Rulemaking, Required Rulemaking on Personal Financial Data Rights, § 1033.421(h)

For the sake of space, this page lists only the primary rules related to this term that most businesses should follow. More may apply to your situation, and your unique facts affect how they apply.

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Why these rules exist

The label is not a separate violation. The FTC's Amazon complaint seeks relief for violations of Section 5(a) of the FTC Act and Section 4 of ROSCA, and it uses "dark patterns" to describe how the alleged conduct worked. Source: Complaint for Permanent Injunction, Civil Penalties, Monetary Relief, and Other Equitable Relief (FTC v. Amazon.com, Inc.) The CFPB reaches the same kind of design through the Consumer Financial Protection Act, whose prohibition on unfair, deceptive, and abusive acts or practices covers sellers who engage in negative option marketing. Source: Consumer Financial Protection Circular 2023–01: Unlawful Negative Option Marketing Practices (CFPB)

Agencies focus on these designs because they interfere with the two points where a consumer exercises choice, sign-up and exit. The CFPB observes that dark patterns can be particularly harmful when paired with negative option programs, because consumers are misled into subscriptions with recurring charges and then find it difficult to cancel and avoid those charges. Source: Consumer Financial Protection Circular 2023–01: Unlawful Negative Option Marketing Practices (CFPB) The same concern drives the CFPB's proposal that revoking a data authorization be as easy as granting it, so that third parties do not bury the revocation mechanism or otherwise obfuscate a consumer's ability to use it. Source: CFPB, Notice of Proposed Rulemaking, Required Rulemaking on Personal Financial Data Rights, § 1033.421(h)

A business cannot assume that the lack of a dark-patterns statute protects it. In the Amazon ROSCA case, the court addressed fair notice by asking whether the defendants had fair notice of what the statute itself requires, not whether they had notice of the FTC's interpretation. Source: Order Denying Defendants’ Motion to Certify an Interlocutory Appeal (FTC v. Amazon.com, Inc.) The CFPB's circular on negative option marketing, by contrast, is a general statement of policy that does not impose legal requirements on external parties. Source: Consumer Financial Protection Circular 2023–01: Unlawful Negative Option Marketing Practices (CFPB)

Enforcement examples

Age of Learning (ABCmouse children's educational subscription service)

Statement of Commissioner Rohit Chopra

As Commissioner Chopra describes the complaint, ABCmouse tricked consumers with a "12-month" membership offer without disclosing that the membership would automatically renew, and buried that information in Terms and Conditions reachable only through a hyperlink. Source: Statement of Commissioner Rohit Chopra (FTC) Leaving was no easier: the cancellation path was deeply buried, and the company frequently refused to honor cancellation requests made through its Customer Support portal or by phone. Source: Statement of Commissioner Rohit Chopra (FTC) Families who cancelled through the website had to click through a labyrinth of pages urging them not to cancel, including ambiguous menu options that in some cases re-enrolled members who clicked the wrong button. Source: Statement of Commissioner Rohit Chopra (FTC) In 2017 the company made the already-buried "Cancellation Policy" link less prominent, and its Senior Design Director reported that more families were abandoning their efforts to cancel. Source: Statement of Commissioner Rohit Chopra (FTC)

Outcome. The Commission finalized its action against Age of Learning, the operator of ABCmouse. Source: Statement of Commissioner Rohit Chopra (FTC)

FTC v. Amazon.com, Inc. (Amazon Prime enrollment and cancellation)

Complaint for Permanent Injunction, Civil Penalties, Monetary Relief, and Other Equitable Relief; Amended Complaint; Order Denying Defendants’ Motion to Certify an Interlocutory Appeal

The FTC's complaint alleges that Amazon used manipulative, coercive, or deceptive user-interface designs known as "dark patterns" to trick consumers into enrolling in automatically-renewing Prime subscriptions. Source: Complaint for Permanent Injunction, Civil Penalties, Monetary Relief, and Other Equitable Relief (FTC v. Amazon.com, Inc.) According to the amended complaint, most versions of the checkout flow revealed Prime's terms and conditions only once, in a small, easy-to-miss font, while repetition and color directed attention to "free shipping" and away from Prime's price. Source: Amended Complaint for Permanent Injunction, Civil Penalties, Monetary Relief, and Other Equitable Relief (FTC v. Amazon.com, Inc.) Until at least 2020, a consumer who wanted to decline Prime had to click a link stating "No thanks, I do not want fast, free delivery." Source: Amended Complaint for Permanent Injunction, Civil Penalties, Monetary Relief, and Other Equitable Relief (FTC v. Amazon.com, Inc.) On the exit side, the complaint alleges that Amazon designed its Iliad cancellation process to be labyrinthine, and that its primary purpose was to thwart cancellation rather than enable it. Source: Complaint for Permanent Injunction, Civil Penalties, Monetary Relief, and Other Equitable Relief (FTC v. Amazon.com, Inc.)

Outcome. The court denied the defendants' motions to dismiss the Amended Complaint. Source: Order Denying Defendants’ Motion to Certify an Interlocutory Appeal (FTC v. Amazon.com, Inc.) It also rejected the contention that the lawsuit violates the defendants' due process rights as a matter of law because they lacked "fair notice" of the FTC's interpretation of ROSCA. Source: Order Denying Defendants’ Motion to Certify an Interlocutory Appeal (FTC v. Amazon.com, Inc.)

FTC v. Amazon (Prime Video sign-up and all-or-nothing Prime structure)

Amazon, Inc.: Complaint for Relief

The complaint alleges that Amazon technically offers Prime Video on a standalone basis but uses dark patterns and other manipulative design techniques to thwart most shoppers from actually signing up for it. Source: Amazon, Inc.: Complaint for Relief (FTC) (Part 3/12) It also alleges that Amazon does not let shoppers subscribe only to the unlimited shipping component of Prime. Source: Amazon, Inc.: Complaint for Relief (FTC) (Part 3/12)

Outcome. As the complaint frames it, this all-or-nothing structure means that shoppers who want any of the Prime services must effectively buy all of them and maintain a full Prime subscription. Source: Amazon, Inc.: Complaint for Relief (FTC) (Part 3/12)

Exposure

A violation of Section 5(a) of the FTC Act or Section 4 of ROSCA can expose a business to the remedies the FTC asked for in its Amazon complaint: permanent injunctive relief, restitution, civil penalties, and other equitable relief. Source: Complaint for Permanent Injunction, Civil Penalties, Monetary Relief, and Other Equitable Relief (FTC v. Amazon.com, Inc.) The exposure is not limited to the company. In the Amazon case the court rejected the argument of Defendants Lindsay, Grandinetti, and Ghani that, as a matter of law, they lacked fair warning that the ordinary performance of their jobs could subject them to personal liability. Source: Order Denying Defendants’ Motion to Certify an Interlocutory Appeal (FTC v. Amazon.com, Inc.)

Civil penalties under ROSCA turn on knowledge. The court in the Amazon case described the standard as actual knowledge or knowledge fairly implied, which exists when a reasonable person under the circumstances would have known of the provision and that the action charged violated it. Source: Order Denying Defendants’ Motion to Certify an Interlocutory Appeal (FTC v. Amazon.com, Inc.) Internal documents can feed that inquiry. The FTC's complaint alleges that Amazon internally admitted using dark patterns for its user interfaces "to mislead or trick users to make them do something they didn’t want to do, like signing up for a recurring bill." Source: Amazon, Inc.: Complaint for Relief (FTC) (Part 3/12)

A defense aimed at the ROSCA claim does not reach every theory. In the Amazon case, the fair-notice and civil-penalty issues concerned only the ROSCA claim and had no bearing on potential liability under Section 5(a) of the FTC Act. Source: Order Denying Defendants’ Motion to Certify an Interlocutory Appeal (FTC v. Amazon.com, Inc.) For financial products, the CFPB has said that making cancellation difficult may, depending on the facts and circumstances, be an unfair, deceptive, or abusive act or practice in violation of the CFPA. Source: Consumer Financial Protection Circular 2023–01: Unlawful Negative Option Marketing Practices (CFPB)

FAQs

1.Complaint for Permanent Injunction, Civil Penalties, Monetary Relief, and Other Equitable Relief. Complaint for Permanent Injunction, Civil Penalties, Monetary Relief, and Other Equitable Relief (FTC v. Amazon.com, Inc.)
2.Consumer Financial Protection Circular 2023–01: Unlawful Negative Option Marketing Practices. Consumer Financial Protection Circular 2023–01: Unlawful Negative Option Marketing Practices (CFPB)See also Statement of Commissioner Rohit Chopra. Statement of Commissioner Rohit Chopra (FTC)
3.Statement of Commissioner Rohit Chopra. Statement of Commissioner Rohit Chopra (FTC)See also Statement of Commissioner Rohit Chopra. Statement of Commissioner Rohit Chopra (FTC)