/>iThe Massachusetts Attorney General issued new regulations labeled “Unfair and Deceptive Fees” that take effect on Sept. 2, 2025. The stated purpose of the regulations is to (1) set standards governing certain fees imposed in connection with marketing, soliciting, and selling products for personal, family, or household use, (2) set standards governing trial offers and contracts with negative option features, and (3) protect consumers by ensuring a “fairer and more transparent marketplace.” The regulations seek to achieve that purpose by outlining what the Massachusetts Attorney General believes are unfair or deceptive acts or practices—something the Attorney General is authorized to do under Massachusetts General Laws Chapter 93A—the Massachusetts Consumer Protection Act.
The regulations contain requirements that businesses must understand and follow when conducting covered activities with consumers in Massachusetts. As the regulations are based in part on an ordinary consumer standard, we may see an increase in Attorney General enforcement actions and consumer litigation under Chapter 93A as the Attorney General and courts interpret and enforce the regulations. Violations of the regulations only determine what would be unfair or deceptive under Chapter 93A, Section 2 (absent a challenge that the regulations exceed the scope of Section 2). In an Attorney General enforcement action, a business violating the regulations would be subject to repaying any ascertainable losses of money or property to consumers, attorneys’ fees and costs, and up to a $5,000 penalty per violation. In a consumer-brought action, a consumer would need to demonstrate that a violation caused a separate and distinct injury under Chapter 93A, Section 9. That injury may be economic or non-economic depending on the circumstances and would entitle a consumer to recover damages and attorneys’ fees and costs, as well as up to three times actual damages for certain types of conduct. Businesses failing to adjust their practices to comply with the regulations may face a heightened risk of regulatory enforcement and consumer litigation, including consumer-based, class-action litigation.
We review the regulations below, including their scope, what practices are deemed unfair or deceptive, and how the regulations relate to other laws, including similar laws and regulations from the Federal Trade Commission (FTC) and in other states that a business must consider when conducting business outside of Massachusetts.
Who Must Comply with Massachusetts Chapter 93A Junk Fee Regulations: Business Coverage and Jurisdiction
The regulations apply to acts or practices “performed in connection with” any advertising1 or marketing, solicitation, or sale2 offer targeted to3 or resulting in a sale in Massachusetts.
Unfairness and Deception—Advertising, Marketing, Solicitation, or Offer of Sale
In connection with any advertising, marketing, solicitation, or sale offer that is targeted to or results in a sale in Massachusetts, the following acts or practices are deemed unfair or deceptive under Chapter 93A, § 2:
| A. | During the Initial Presentation of Price: misrepresenting or failing to disclose clearly and conspicuously, at the time of the initial presentation (i) of the price of any product,4 or any subsequent presentation thereafter, the total price of that product; and (ii) of the total price of any product: (a) the nature, purpose, and amount of any fees, charges, or other expenses that would be imposed on the transaction due to the purchase of that product (excluding shipping charges and government charges),5 and (b) for any fees, charges, or other expenses disclosed that are optional to the consumer or waivable by the seller; the fact that such fees, charges, or other expenses are optional to the consumer or waivable by the seller; as well as readily available instructions regarding how to avoid such fees, charges, or other expenses. |
| B. | During the Final Presentation of Price: misrepresenting or failing to disclose clearly and conspicuously, in the final presentation of the price of any product prior to the sale of the product: (i) the final transaction amount, inclusive of the total price for all products purchased as part of the transaction and any applicable shipping charges and government charges; (ii) the nature, purpose, and amount of any fees, charges, or other expenses that would be imposed on the transaction due to the purchase of that product; (iii) for any fees, charges, or other expenses disclosed that are optional to the consumer or waivable by the seller; the fact that such fees, charges, or other expenses are optional to the consumer or waivable by the seller; as well as readily available instructions regarding how to avoid such fees, charges or other expenses. |
| C. | Generally: (i) failing to disclose clearly and conspicuously the total price of any product prior to requiring a consumer to provide any personal information, including billing information, unless the information is collected specifically, and only to the extent necessary, to facilitate underwriting in connection with the sale of the product, determine the product’s availability, determine whether the sale of the product to the consumer is legal, or compute an aspect of pricing previously approved by a Commonwealth insurance or financial regulatory agency; (ii) misrepresenting that any fees, charges, or other expenses or any portion thereof are required by law; and (iii) failing to display the total price of a product more prominently than any other pricing information any time the disclosure of the total price is required, except for the final presentation of prices where the most prominent pricing information must be the final transaction amount. |
| D. | “Clearly and Conspicuously”: This means readily noticeable and readily understandable by ordinary consumers, including the following ways: |
- Visual and Audible Communications: for communications that are solely visual or audible, the disclosure must be made through the same means through which the communication is presented. In any communication made through both visual and audible means, such as a television advertisement, the disclosure must be presented simultaneously in both the visual and audible portions of the communication, even if the representation requiring the disclosure is made in only one means.
- Visual Disclosures: a visual disclosure, by its size, contrast, location, the length of time it appears, and other characteristics, must stand out from any accompanying text or other visual elements so that it is easily noticed, read, and understood.
- Audible Disclosures, Including Audible Disclosures Accompanied by Video Visual Media: the disclosure must be delivered in a volume, speed, and cadence sufficient for ordinary consumers to readily hear and understand it.
- Interactive Electronic Medium Communications (Internet, Mobile App, or Software): the disclosure must be unavoidable.
- All Communications: the disclosure must use diction and syntax understandable to ordinary consumers and must appear in each language in which the representation that requires the disclosure appears.
- All Disclosures: (i) the disclosure must not be contradicted or mitigated by, or inconsistent with, anything else in the communication to consumers; (ii) the disclosure must comply with these requirements in each medium through which it is received, including all electronic devices and face-to-face communications; (iii) when the representation or sales practice targets a specific audience, such as children or older adults, requirements for comprehension by “ordinary consumers” must be satisfied both with the audience and then separately with the targeted group.
| E. | “Total Price”: This means the maximum price a consumer must pay for a product, inclusive of all fees, charges, or other expenses, and includes the maximum price a consumer must pay for any mandatory ancillary product offered as part of the same transaction. Total price may exclude government charges or shipping charges. A total price may rely on the accuracy of information used to compute an aspect of pricing previously approved by a Commonwealth insurance or financial regulatory agency. A change in total price caused by a change in information used to compute an aspect of pricing previously approved by a Commonwealth insurance or financial regulatory agency will not violate the regulations as long as: (a) the updated total price is provided to the consumer as soon as is feasible; and (b) consumers are warned that there may be a change in total price on this basis at the time the total price is provided. |
| F. | Exceptions: There are certain exceptions to the requirements above for food delivery or grocery delivery platforms and for rental or leasing transactions. Specifically, it is not unlawful for a delivery platform to advertise the price of menu items, but the platform must display clearly and conspicuously the maximum mandatory charges or fees that a consumer must pay to complete a transaction on their user interface any time any pricing information is displayed. Also, it is not unlawful for a “seller” to advertise the total price to rent or lease the dwelling unit as a dollar amount to be paid by the consumer on a periodic basis, such as monthly or on such other term as the seller intends the rent to be paid, but the seller must disclose clearly and conspicuously the full period covered by the rental or lease. |
Unfairness and Deception—Recurring Fees and Trial Offers
In connection with any advertising, marketing, solicitation, or sale offer that is targeted to or results in a sale in Massachusetts, the following acts or practices are deemed unfair or deceptive under Chapter 93A, § 2:
| A. | Trial Offers: failing to disclose clearly and conspicuously and in writing, prior to the consumer’s acceptance of the trial offer,6 the following information: (i) any financial obligations that may be incurred as a result of accepting the trial offer; (ii) identification of all products for which the consumer may incur a financial obligation as a result of accepting the trial offer; (iii) instructions as to the means by which the consumer may reject or cancel the trial offer before the consumer incurs a financial obligation; (iv) the calendar date by which the consumer must reject or cancel the trial offer in order to avoid incurring a financial obligation; and (v) the calendar date on which the consumer will incur any financial obligation if the consumer fails to reject or cancel the trial offer. |
| B. | Products with a Negative Option Feature Generally: (i) failing to disclose clearly and conspicuously and in writing, prior to the consumer’s purchase of the product, the following information: (1) that the consumer will be charged for the product, or that charges will increase after any applicable trial period ends; (2) if applicable, that the charges will occur on a recurring basis, unless the consumer timely takes steps to prevent or stop such charges; and (3) instructions as to the mechanism by which the consumer may cancel the negative option feature7 and avoid being charged for the product; (ii) failing to provide a simple mechanism for a consumer to cancel the negative option feature and avoid being charged for the product and immediately stop any recurring charges.
The “simple mechanism” referenced above must be at least as easy to access and use as the method the consumer used to initiate the negative option feature. Also, it must, at a minimum, be available through the same medium (such as Internet, telephone, mail, or in-person) the consumer used to initiate the negative option feature, and for: |
- Internet Cancellation: the simple mechanism must be available through the same website or web-based application the consumer used to initiate the negative option feature;
- Telephone Cancellation: the simple mechanism must be available through a telephone number, and all calls to this number must be answered promptly during normal business hours and not be more costly than the telephone call the consumer used to initiate the negative option feature;
- In-Person Sales: the simple mechanism must be available through the Internet or through a “compliant” telephone number in addition to, where practical, an in-person method similar to that the consumer used to initiate the negative option feature.
| C. | Negative Option Feature Exceeding 31 Days: (1) failing to provide the consumer written notice within no more than 30 and no fewer than five calendar days prior to the date upon which the consumer must cancel in order to avoid incurring a subsequent financial obligation, which discloses clearly and conspicuously: (i) any financial obligations that may be incurred if the consumer fails to cancel the negative option feature; (ii) all products for which the consumer may incur a financial obligation if the consumer fails to cancel the negative option feature; (iii) the mechanism by which the consumer may cancel the negative option feature; (iv) the calendar date by which the consumer must cancel the negative option feature in order to avoid incurring a financial obligation; and (v) the calendar date on which the consumer will incur any financial obligation if the consumer fails to cancel the negative option feature; and (2) failing to provide the written notice required by the regulations through a medium substantially similar to that used by the consumer to initiate the negative option feature, or through a commonly-used medium that is reasonably calculated to be seen and understood by an ordinary consumer, and that is affirmatively chosen by the consumer to be their preferred method of contact. Where the consumer initiated the negative option feature through an in-person transaction, the written notice required by the regulations must be provided through a commonly used medium that is reasonably calculated to be seen and understood by an ordinary consumer, and that is affirmatively chosen by the consumer to be their preferred method of contact. |
| D. | Negative Option Feature of 31 Days or Less: failing to provide written notice through a medium substantially similar to that used by the consumer to initiate the negative option feature, or through a commonly used medium that is reasonably calculated to be seen and understood by an ordinary consumer or that discloses clearly and conspicuously, at least as frequently as the consumer is charged, the amount the consumer has been charged at auto-renewal and instructions as to the mechanism by which the consumer may cancel the negative option feature and avoid incurring additional charges for the product. |
Chapter 93A Junk Fee Compliance for Multi-State Businesses: FTC Overlap and State Law Conflicts
The regulations seek to reconcile its requirements with other laws. Manufacturers and dealers of motor vehicles, health care providers, creditors, and licensed or registered securities professionals should pay particular attention to 940 C.M.R. 38.06 to assess whether provisions of other laws or regulations may alter their compliance requirements under the regulations. Also, any business conducing covered activities outside of Massachusetts should consider the impact of similar laws and regulations that the FTC has issued, along with those adopted in a growing list of other states, sometimes with additional or different requirements on disclosures, timing for renewal notices, and other details affecting the advertising of all-in prices and the marketing of auto-renewal subscription programs.
